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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> APPENDICES TO THE ROSEPARK NURSING HOME FATAL ACCIDENT INQUIRY [2011] ScotSC 84 (19 April 2011)
URL: http://www.bailii.org/scot/cases/ScotSC/2011/84.html
Cite as: [2011] ScotSC 84
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ROSEPARK FATAL ACCIDENT INQUIRY
APPENDICES
INDEX
SUBMISSIONS FOR PARTIES
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Appendix 1.1 |
Crown - Index, Proposed Determination and Chapters 1 to 15
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Appendix 1.2 |
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Appendix 1.3 |
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Appendix 1.4 |
Crown - Chapters 44 to 46(6)(F)
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Appendix 2 |
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Appendix 3 |
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Appendix 4 |
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Appendix 5 |
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Appendix 6 |
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Appendix 7 |
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Appendix 8 |
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Appendix 9 |
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Appendix 10 |
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Appendix 11 |
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Appendix 12 |
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Appendix 13 |
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Appendix 14 |
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Appendix 15 |
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ROSEPARK FATAL ACCIDENT INQUIRY - SUBMISSIONS FOR THE CROWN
1. Introduction
2. The law of evidence
3. Rosepark Care Home: Location and Layout
4. Management and Staffing at the time of the Fire
5. Residents on 30-31 January 2004
6. Construction of Rosepark Care Home
7. Registration
8. The Ventilation System
9. The Fire Alarm System
10. The Washing Machines
11. The Electrical Installation
12. Maintenance of the Electrical Installation
13. Cupboard A2
14. Cross-corridor doors
15. Bedroom doors
16. Policies and procedures
17. Fire Safety Notices
18 (formerly 17A) Fire Safety Responsiblities
19 (formerly 18) The Emergency Plan
20 (formerly 19) Fire training and fire drills
21(formerly19A) Evacuation and its difficulties
22 (formerly 20) The Millenium Bug and the Fire Brigade Union Strike
23 (formerly 21) False alarms
24 (formerly 22) Mr. Reid
25 (formerly 22A) 1(1)(d) visits and risk categorization of Rosepark
26 (formerly 22B) Interaction with Lanarkshire Health Board
27 (formerly 22C) Interaction with Care Commission
28 (formerly 23) The events of the night
29 (formerly 24) The status of bedroom doors during the fire
30 (formerly 25) The Location of the Fire
31 (formerly 26) Development of the fire: the BRE work
32 (formerly 27) Development of the fire from ignition to flaming combustion
33 (formerly 28) BRE Test 1 a reasonable representation of the development of the fire at Rosepark
34 (formerly 29) Development of the fire: the role of Aerosols
35 (formerly 30) Development of the fire: the role of Furniture in the corridor
36 (formerly 31) Development of the fire: the evidence of Mrs. Burns
37 (formerly 32) Development of the fire: corridor 3
38 (formerly 33) When did ignition occur?
39 (formerly 34) Smoke and Toxic Fire Gases
40 (formerly 34A) Effects of Toxic Atmosphere on Occupants of Corridors 3 and 4
41 (formerly 35) Where and When each Death took Place
42 (formerly 36) The Cause or Causes of Death of Each Deceased
43 (formerly 37) The Cause of the Fire
44 (formerly 38) Reasonable precautions
(1) Cable protection
(2) Inspection and testing of the electrical installation
(3) Protection of the means of Escape
(A) Cupboard doors
(B) Bedroom doors
(C) Smoke seals
(D) Storage of aerosols
(E) Subdivision of corridor
(F) Fire dampers
(4) Prompt and effective action by staff
(A) Information at the panel
(B) Training and drills
(C) Instruction in the new panel
(5) Early involvement of the Fire Brigade
(6) Risk assessment
(7) Early and Sufficient Resourcing of the Incident by the Fire Brigade
45 (formerly 39) Defects in systems of work
(1) Inspection and testing of the electrical installation
(2) Training and drills
(3) Management of fire safety
(4) Management of the construction process
(5) Interaction between Rosepark and the Health Board
46 (formerly 40) Other matters
(1) Enforcement of the Fire Precautions Legislation
(2) Statutory Responsibility for Fire Safety: Care Commission and Strathclyde Fire and Rescue understanding of their respective roles
(3) Certificate of Completion: the position of the Architect and Building Control Authority
(4) Checking of documentation re testing and inspection of electrical installation and ventilation system
(5) Competence of risk assessors
(6) Developments since the Rosepark fire
(A) The immediate aftermath
(B) Strathclyde Fire & Rescue
(C) The Fire (Scotland) Act 2005, its Regulations and its Consequences
(D) Building Standards
(E) Rosepark Care Home
(F) Mr. Todd
PROPOSED DETERMINATIONS
Section 6(1)(a) - when and where the death took place [Chapter 41 (formerly 35)]
1 Robina Burns died in the Coronary Care Unit at Glasgow Royal Infirmary at or about 7 p.m. on 2 February 2004.
2 Thomas Cook died in room 16 at Rosepark Care Home at or about 4.38 am on 31 January 2004
3 Helen (Ella) Crawford died in room 14 at Rosepark Care Home at or about 4.38 am on 31 January 2004
4 Agnes Dennison died in room 17 at Rosepark Care Home at or about 4.38 am on 31 January 2004
5 Margaret Gow died at Stobhill Hospital at or about 10.40 am on 2 February 2004.
6 Margaret Lappin died in room 12 at Rosepark Care Home at or about 4.39 am on 31 January 2004
7 Isabella Maclachlan died at Wishaw General Hospital at or about 3.35 am on 1 February 2004
8 Isabella MacLeod died at Stobhill Hospital at or about 4.45 pm on 1 February 2004
9 Mary McKenner died in room 13 at Rosepark Care Home at or about 4.39 am on 31 January 2004
10 Julia McRoberts died in room 9 at Rosepark Care Home at or about 4.38 am on 31 January 2004
11 Margaret Dorothy (Dora) McWee died in room 15 at Rosepark Care Home at or about 4.38 am on 31 January 2004
12 Ellen (Helen) Milne died in room 13 at Rosepark Care Home at or about 4.38 am on 31 January 2004
13 Annie (Nan) Stirrat died in room 9 at Rosepark Care Home at or about 4.38 am on 31 January 2004
14 Annie Thomson died in room 14 at Rosepark Care Home at or about 4.38.30 am on 31 January 2004
Section 6(1)(a) - when and where the accident resulting in the deaths took place
Where ... the accident resulting in the deaths took place [Chapter 30 formerly 25)]
1. Each of the deaths resulted from a fire which occurred at Rosepark Care Home on 31 January 2004.
2. The fire started low down on the south side of the cupboard known as cupboard A2 in the upper corridor of Rosepark Care Home.
When ... the accident resulting in the deaths took place [Chapter 38 (formerly 33)]
The fire started at or about 04.25 am on 31 January 2004.
Section 6(1)(b) - the cause or causes of death [Chapter 42 (formerly 36)]
1. The death of Robina Burns was caused by acute tracheobronchitis due to inhalation of smoke and fire gases. Ischaemic heart disease due to coronary artery atheroma and cardiac amyloidis were potential contributing causes.
2. The death of Thomas Cook was caused by the inhalation of smoke and fire gases.
3. The death of Helen (Ella) Crawford was caused by the inhalation of smoke and fire gases.
4. The death of Agnes Dennison was caused by the inhalation of smoke and fire gases.
5. The death of Margaret Gow was caused by bronchopneumonia due to the inhalation of smoke and fire gases.
6. The death of Margaret Lappin was caused by the inhalation of smoke and fire gases.
7. The death of Mary McKenner was caused by the inhalation of smoke and fire gases.
8. The death of Isabella MacLachlan was caused by bronchopneumonia due to inhalation of smoke and fire gases. Chronic obstructive airways disease was a potentially contributing cause of death.
9. The death of Isabella MacLeod was caused by bronchopneumonia due to hypoxic brain damage and the inhalation of smoke and fire gases.
10. The death of Julia McRoberts was caused by the inhalation of smoke and fire gases.
11. The death of Margaret Dorothy (Dora) McWee was caused by the inhalation of smoke and fire gases.
12. The death of Ellen (Helen) Milne was caused by the inhalation of smoke and fire gases.
13. The death of Annie (Nan) Stirrat was caused by the inhalation of smoke and fire gases.
14. The death of Annie Thomson was caused by the inhalation of smoke and fire gases.
Section 6(1)(b) - the cause or causes of the accident resulting in the deaths [Chapter 43 (formerly 37)]
The accident resulting in the deaths was caused by an earth fault occurring where Cable V passed through the knockout at the back of the distribution box in cupboard A2.
Section 6(1)(c) - the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided.
Insulation at the Cable Knockout [Chapter 44(1) (formerly 38(1))]
1. It would have been a reasonable precaution:-
(a) for a grommet or other cable protection to have been fitted at the upper righthand knockout of the distribution board when the system was installed and, in any event, when Cable V was installed; and
(b) for the installation to have been undertaken in such a manner that the outer sheath of Cable V was protecting the inner cores as they passed through the knockout.
2. Had there been a grommet in place, or if the outer sheath of Cable V had been protecting the inner cores as they passed through the knockout the accident and the deaths might have been avoided.
Inspection and Testing of the Electrical Installation [Chapter 44(2) (formerly 38(2))]
1. It would have been a reasonable precaution for the distribution board to have been inspected and tested in accordance with the IEE Regulations at least on the following occasions:-
1.1. On completion of the electrical installation at Rosepark in 1992;
1.2. When the system was modified to add Cable V; and
1.3. Not later than the fifth and tenth anniversaries of the completion of the electrical installation.
2. Had the system been inspected and tested in accordance with the IEE Regulations, the accident and the deaths might have been avoided.
Cupboard Doors [Chapter 44(3)(A) (formerly 38(3)(A))]
1. It would have been a reasonable precaution for the doors to cupboard A2 to have been kept locked shut or at least securely closed.
2. Had the doors of cupboard A2 been securely closed, the deaths might have been avoided.
And
1. It would have been a reasonable precaution to fit fire-resisting doors to cupboard A2.
2. Had this precaution been taken, the deaths might have been avoided.
Bedroom Doors [Chapter 44(3)(B) (formerly 38(3)(B))]
1. It would have been a reasonable precaution for all bedroom doors to have been closed in the event that a fire alarm sounded.
2. Had this precaution been taken the deaths, or some of them, might have been avoided.
Smoke Seals [Chapter 44(3)(C) (formerly 38(3)(C))]
1. It would have been a reasonable precaution to have fitted smoke seals to bedroom doors.
2. Had this precaution been taken the deaths of Robina Burns and Isabella MacLeod might have been avoided.
Storage of Aerosols [Chapter 44(3)(D) (formerly 38(3)(D))]
1. It would have been a reasonable precaution to minimize the storage of combustible materials in cupboard A2. In particular, it would have been a reasonable precaution not to store a quantity of aerosols within cupboard A2.
2. Had this precaution been taken, some or all of the deaths might have been avoided.
Subdivision of Corridor 4 [Chapter 44(3)(E) (formerly 38(3)(E))]
1. It would have been a reasonable precaution to reduce the number of residents in any subcompartment by subdividing corridor 4.
2. Had this precaution been taken, some of the deaths might have been avoided.
Fire Dampers [Chapter 44(3)(F) (formerly 38(3)(F))]
1. The installation of fire dampers would have been a reasonable precaution.
2. Had this precaution been taken the deaths in corridor 3 might have been avoided.
Information at the Alarm Panel [Chapter 44(4)(A) (formerly 38(4)(A))]
1. It would have been a reasonable precaution to have provided clear information at the fire alarm panel (and, in particular a diagrammatic representation) enabling staff to identify quickly and accurately the location of the detector which had been activated.
2. This precaution might have avoided some or all of the deaths.
Training and Drills [Chapter 44(4)(B) (formerly 38(4)(B))]
1. It would have been a reasonable precaution for staff to have been provided with adequate training and drills in the action required of them in an emergency.
2. Had this precaution been taken, some or all of the deaths might have been avoided.
Instruction in the new Alarm Panel [Chapter 44(4)(C) (formerly 38(4)(C))]
1. It would have been a reasonable precaution for Isobel Queen to have been given instruction in relation to the new fire alarm panel.
2. Had this precaution been taken some or all of the deaths might have been avoided.
Early Involvement of to the Fire Brigade [Chapter 44(5) (formerly 38(5)]
1. The following would have been reasonable precautions:-
1.1 An immediate call to the Fire Brigade when the fire alarm sounded: and to that end:-
1.1.1. An Emergency Procedure which provided that an immediate call should be made to the Fire Brigade when the fire alarm sounded; and
1.1.2. Automatic transmission of a signal to the Fire Service in the event of the fire alarm system being activated.
1.2 Provision to the Control Room Operator by Isobel Queen of the correct access address for Rosepark Care Home, namely Rosepark Avenue;
1.3 Classification by Strathclyde Fire and Rescue of Rosepark Care Home as "special risk" under Operational Technical Note Index No. A6 such that each watch at Bellshill Fire Station visited it annually;
1.4 Provision to the Control Room Operator by Isobel Queen of the correct access address for Rosepark Care Home, namely Rosepark Avenue;
1.5 For Station Officer Campbell of E031 to have read, and taken account of, the additional information about access contained in the turn-out slip received at Bellshill Fire Station and Hamilton Fire Station;
1.6 For Leading Firefighter McDiarmid of E012 to have read, and taken account of, the additional information about access contained in the turn-out slip received at Bellshill Fire Station and Hamilton Fire Station;
1.7 For E031 and E012 have attended at Rosepark Avenue.
2. Had these precautions been taken, they might have avoided the deaths of Isabella MacLachlan, Margaret Gow, Robina Burns and Isabella MacLeod.
Suitable and Sufficient Risk Assessment [Chapter 44(6) (formerly 38(6))]
1. It would have been a reasonable precaution for the management of Rosepark to have undertaken a suitable and sufficient fire risk assessment.
2. Had this precaution been taken, the accident and some or all of the deaths might have been avoided.
Early and Sufficient Resourcing of the Incident by the Fire Brigade [Chapter 44(7) (formerly 38(7))]
The following would have been reasonable precautions:-
1.1 For Station Officer Campbell to have examined the fire alarm panel and zone card in order to verify the information he had obtained from staff about the possible whereabouts of the fire;
1.2 For Station Officer Campbell to have treated the residents of the upper level bedrooms beyond corridor 2 as unaccounted for, until the position was established otherwise.
1.3 For Station Officer Campbell to have confirmed with the staff of Rosepark whether the doors to the bedrooms beyond corridor 2 were open or closed;
1.4 For Station Officer Campbell to have instructed the message Make Pumps 6 at 0450 hours when the persons reported message was sent;
1.5 For Station Officer Campbell to have instructed the message Make Pumps 6 at 0450 hours even if the information gleaned from the fire alarm panel was unclear.
2 Had these precautions been taken, they might have avoided the death of Robina Burns.
Section 6(1)(d) - the defect, if any, in any system of working which contributed to the death or any accident resulting in the death
Maintenance of the Electrical Installation [Chapter 45(1) (formerly 39(1))]
1. The system of maintenance of the electrical installation at Rosepark was defective.
2. This contributed to the deaths.
Training and drills [Chapter 45(2) (formerly 39(2))]
1. The system of work in respect of fire safety training and drilling of staff at Rosepark were defective.
2. This contributed to the deaths.
Management of Fire Safety [Chapter 45(3) (formerly 39(3))]
1. The management of fire safety at Rosepark was systematically and seriously defective.
2. The deficiencies in the management of fire safety at Rosepark contributed to the deaths.
Management of Construction of Rosepark [Chapter 45(4) (formerly 39(4))]
Proposed determination:
1. The management of the construction of Rosepark was defective.
2. This contributed to the deaths.
Lanarkshire Health Board [Chapter 45(5) (formerly 39(5))]
1. The following were defects in the system of working by Lanarkshire Health Board as regards regulation of nursing homes, and in particular Rosepark Care Home, which contributed to the deaths:
1.1 The regime of inspection instituted by Lanarkshire Health Board, and operating during the period 1992 to 2002, was based on an inadequate appreciation of the scope of the statutory responsibilities of Health Boards under the Nursing Homes Registration (Scotland) Regulations 1990 ("the 1990 Regulations");
1.2 The regime of inspection was not advised by any clear determination by the Health Board of what standards of fire precautions it considered to be sufficient and suitable in terms of regulation 13 of the 1990 Regulations;
1.3 The system of working of the inspection teams of Lanarkshire Health Board between 1992 and 2002 was defective in that it did not recognize that it was for the Health Board, through its inspectors, to examine the sufficiency and suitability of all of the facilities provided, precautions taken and arrangements made by the person registered, as regards fire precautions, under regulation 13 of the 1990 Regulations;
1.4 The system of working of the inspection teams of Lanarkshire Health Board between 1992 and 2002 was defective in that it was conducted on the basis of a fundamental misunderstanding of the role of Strathclyde Fire and Rescue Service in the inspection of nursing homes over that period of time.
2. The defects in the systems of work of Lanarkshire Health Board contributed to the deaths of Margaret Gow and Isabella MacLachlan. Absent such defects the other deaths might have been avoided.
Section 6(1)(e) - any other facts which are relevant to the circumstances of the death
CHAPTER 27 (Formerly 22C) - The Care Commission and its interaction with Rosepark 2002-2004
The following facts were relevant to the deaths:
1. The proposals which gave rise to the Regulation of Care (Scotland) Act 2001("the 2001 Act"), the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 ("the 2002 Regulations"), and the National Care Standards 2002, were not intended to effect any change in the level of scrutiny applied to the inspection of fire precautions in nursing homes.
2. The expectation of the sponsors of the new legislation was that the existing arrangements for inspection of nursing homes by Health Boards would continue under the auspices of the Care Commission.
3. The policy intentions behind the 2001 Act, 2002 Regulations and the National Care Standards 2002 reflected a desire, as reflected in the White Paper and subsequent Consultation Document, to move away from a prescriptive approach to inspection which called only for a home to be measured against its compliance with statutory requirements.
4. It is not appropriate for the Inquiry to make findings about the appropriateness of such matters of policy. However, it is a circumstance relevant to the fire at Rosepark that, intentionally or otherwise, the repeal of the Nursing Homes (Registration) (Scotland) Act 1938 ("the 1938 Act") and the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 1990 ("the 1990 Regulations"), and their replacement with the 2001 Act, 2002 Regulations, and the National Care Standards, resulted in a weaker regime of inspection.
5. Regulation 19 of the 2002 Regulations was the only regulation to address matters of fire safety. It was a regulation concerned with the keeping of records. Until it was amended with effect from 1st October 2006[1], regulation 19 required a care provider to keep a record of the procedure which was to be followed in the event of a fire or other emergency, a record of all fire drills and alarm tests which have been conducted, and a record of any maintenance of equipment which is used in the provision of the care service[2].
6. There was no provision in the 2002 Regulations directing the Care Commission to consider the sufficiency and suitability of the procedure to be followed in the event of a fire or other emergency or the sufficiency and suitability of the recorded fire drills.
7. At Rosepark in 2003 fire safety was not scrutinised in any depth by the inspectors. The inspectors did not see fire safety as a priority. Nor did the Care Commission. At the time of the annual inspection on 20th March 2003 the Care Commission's focus was on the experience for the user of services, and, at a practical level, the establishment of a national regime of inspection applying national standards.
8. The 2001 Act, 2002 Regulations and National Care Standards together lent themselves to a lower level of scrutiny of fire precautions than ought to have been the case under the Health Board inspection regime.
9. The way in which fire precautions were examined at Rosepark on 20th March 2003 was unlikely to uncover defects in fire policies and procedures.
10. The inspection on 20th March 2003 did not discover any discrepancy between the contents of published fire notices at Rosepark and the procedure adopted by the home on the sounding of the fire alarm.
11. The inspection on 20th March 2003 did not discover that members of staff at Rosepark, and in particular night staff, were not being given regular fire safety training, and participating in fire drills.
12. The inspection on 20th March 2003 did not discover that there was a practice at Rosepark of permitting bedroom doors to remain open overnight.
13. The inspection on 20th March 2003 did not discover any deficiency in the premises' risk assessment. The inspectors were not, in any event, qualified to assess the suitability or sufficiency of that assessment.
14. On the evidence there was no basis for the finding in the inspection report, under care standard 4, that service users and staff were aware of what to do in the event of a fire and that all relevant fire safety information and tests were recorded.
15. On the evidence there was no basis for the finding in the inspection report, under care standard 5, that Rosepark had appropriate policies and procedures regarding fire safety.
16. The level of scrutiny of fire safety issues at Rosepark on 20th March 2003 was a product of an inspection regime whose focus was on care rather than safety.
CHAPTER 46(1) (formerly 40(1)): Enforcement of the Fire Precautions Legislation
The following facts were relevant to the deaths:
1. Enforcement of the Fire Precautions (Workplace) Regulations was entirely dependent on a risk based approach which determined the premises that would attract inspection. At least in the area of operation of Strathclyde Fire and Rescue, care homes were not being inspected under the 1997 Regulations at all at the time of the fire.
2. Section 10 of the Fire Precautions Act 1971 authorised Fire and Rescue Authorities to seek a prohibition or restriction on the use of premises involving excessive risk to persons in case of fire. That section apart, the only situations which would have caused Strathclyde Fire and Rescue to be at a care home prior to the fire were (i) in the context of section 1(1)(d) visits or the giving of advice under section 1(1)(f) of the Fire Services Act 1947; (ii) a situation where an issue of concern had been raised direct by a third party; (iii) at the request of the regulator (in which case Strathclyde Fire and Rescue would inspect), and (iv) at the invitation of the owner of the care home. Thus, the organisation with the expertise in matters of fire safety was not inspecting care homes routinely.
CHAPTER 46(2) - Statutory Responsibility for Fire Safety: Care Commission and Strathclyde Fire and Rescue understanding of their respective roles
The following facts were relevant to the circumstances of the deaths:
1. Regulation and enforcement of fire safety in care homes at the time of the fire at Rosepark was fragmented.
2. The Care Commission's knowledge of the role of Fire and Rescue Services in relation to fire precautions in care homes, and vice versa, was characterised by a lack of clarity.
3. The product of this lack of clarity was a situation in which the absence of, or deficiencies in the premises risk assessment at Rosepark, and the arrangements for dealing with a fire alarm sounding at night, were unlikely to have been identified at the time when the fire occurred.
CHAPTER 46(3) (formerly 40(3)): Certificate of Completion: Positions of the Architect and Building Control Authority
It is a fact relevant to the circumstances of these deaths that a certificate of completion was issued in circumstances where there had been a serious failure to comply with Building Regulations (in respect of the omission of fire dampers).
CHAPTER 46(4) - Checking of Documentation
It is a fact relevant to the circumstances of these deaths that there had been no external check for documentation vouching: (a) the testing and inspection of the electrical installation; or (b) the testing and inspection of the ventilation system.
CHAPTER 46(5) - Assurance as to the competence of Fire Risk Assessors
It is a fact relevant to the circumstances of the deaths that there was at the time of the fire no statutory requirement as regards the qualifications of persons who provide services in connexion with the risk assessment of Care Homes.
CHAPTER 46(6) (Formerly 40(6)) - Developments since the Rosepark Fire:
Since the fire at Rosepark there have been a number of significant developments, including the following:-
(1) At the instigation of the Scottish Ministers, a process of advisory visits by Fire Services to Care Homes throughout Scotland was instigated following the fire.
(2) Memoranda of Understanding were, in 2005, entered into between the Care Commission and the eight Fire and Rescue Authorities in Scotland.
(3) Strathclyde Fire and Rescue Service issued Operational Technical Note A124, in response to certain recommendations which had been made by Sir Graham Meldrum following the fire at Rosepark Care Home.
(4) The legislation in relation to fire safety which had been in place at the time of the fire was replaced by a comprehensive new legislative framework, in the Fire (Scotland) Act 2005
(5) Changes were made in the relevant Building Standards Regulations (which had already by the time of the fire moved on substantially as compared with the Building Standards Regulations which had applied at the time when Rosepark was built).
(6) At Rosepark Care Home itself, a number of changes were made in light of the experience of the fire.
CHAPTER 1: INTRODUCTION
1. On 31 January 2004, a fire broke out at Rosepark Care Home, 261 New Edinburgh Road, Uddingston. Following the fire, ten residents of the Home were found dead at the scene. Four residents who were rescued alive died subsequently died in hospital. The deceased were the following:
1.1. Robina Worthington Burns, aged 89
1.2. Thomas Thompson Cook, aged 95
1.3. Helen (Ella) Crawford, aged 85
1.4. Agnes Dennison, aged 95
1.5. Margaret McMeekin Gow, aged 84
1.6. Margaret Lappin, aged 83
1.7. Mary McKenner, aged 82
1.8. Isabella Rowlands MacLachlan, aged 93
1.9. Isabella MacLeod, aged 75
1.10. Julia McRoberts, aged 90
1.11. Margaret Dorothy (Dora) McWee, aged 98
1.12. Ellen (Helen) Veronica Milne, aged 82
1.13. Annie (Nan) Stirrat, aged 82
1.14. Annie Florence Thomson, aged 87
2. The inquiry was told that this was the most significant fire, in terms of numbers of lives lost, in the United Kingdom since the King's Cross fire[3].
3. In July 2009 a petition was presented by the Procurator Fiscal under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the 1976 Act") intimating that the circumstances of these deaths were such as to give rise to serious public concern and that it appeared to the Lord Advocate to be expedient in the public interest that an inquiry that Act be held into the circumstances of those deaths.
4. Section 6 of the 1976 Act requires the Sheriff Principal to make determinations on the following matters:-
(a) Where and when the death and any accident resulting in the death took place;
(b) The cause or causes of such death and any accident resulting in the death;
(c) The reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;
(d) The defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and
(e) Any other facts which are relevant to the circumstances of the death.
5. For the purposes of this section, the fire at Rosepark may properly be characterized as an "accident". An "accident" has been described, in the context of the 1976 Act, as "an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury"[4]. The Crown invites a determination that the fire resulted in the deaths of the deceased[5].
6. The following features of an inquiry under the 1976 Act should be noted:
6.1. The function of the sheriff at a fatal accident inquiry is to examine and analyse the evidence with a view only to setting out in his determination the circumstances referred to in section, insofar as that can be done to his satisfaction[6].
6.2. The sheriff has no power under the 1976 Act to make a finding as to fault or to apportion blame between any persons who may have contributed to the accident[7], even though his findings on the matters upon which he must make determinations may implicitly disclose fault[8]. A fortiori, a fatal accident inquiry is not the proper forum for determination of criminal or civil liability[9].
6.3. A fatal accident inquiry "is very much an exercise in applying the wisdom of hindsight"[10]. "It is for the sheriff to identify the reasonable precautions, if any, whereby the death might have been avoided, without regard to any question of the state of knowledge at the time of death. The statutory provisions are concerned with the existence of reasonable precautions at the time of death and are not concerned with whether they could or should have been recognized. They do not relate to questions of foreseeability of risk at the time of death which would be a concept relevant to the context of a fault-finding exercise, which this is not. The statutory provisions are widely drawn and are intended to permit retrospective consideration of matters with the benefit of hindsight and on the basis of the information and evidence available at the time of the inquiry. There is no question of the reasonableness of any precaution depending upon the foreseeability of risk. ... the reference to reasonableness relates to the question of availability and suitability or practicablity of the precautions concerned ... the purpose of a Fatal Accident Inquiry is to look back, as at the date of the inquiry, to determine what can now be seen as the reasonable precautions, if any, whereby the death might have been avoided and any other facts which are relevant to the circumstances of the death ... The purpose of any conclusions drawn is to assist those legitimately interested in the circumstances of the death to look to the future. They, armed with the benefit of hindsight, the evidence led at the inquiry, and the Determination of the inquiry, may be persuaded to take steps to prevent any recurrence of such a death in future"[11].
6.4. The question of reasonableness is directed to the precaution which is identified. The issue is not whether an individual or organization behaved in a reasonable or unreasonable way, but whether or not there is a precaution which is a reasonable one and which might have made a difference.
6.5. When making a finding as to the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided, it is not necessary for the sheriff to be satisfied that the proposed precaution would in fact have avoided the death, only that it might have done. It has been said that this "means less than "would, on the probabilities have been avoided" and, rather, directs one's mind in the direction of the lively possibilities"[12]. On the other hand, in deciding whether to make any determination under as to the defects, if any, in any system of working which contributed to the death or any accident resulting in the death, the sheriff must, as a precondition of making any determination, be satisfied that the defect in question did in fact cause or contribute to the death[13]. Section 6(1)(e) allows the sheriff to make determinations about circumstances relevant to the deaths but which have not been proved to have any causative effect[14].
7. The Crown invites determinations under each of the heads of section 6 and these have been set out separately at the front of these submissions. The most convenient way to set out the factual basis for the proposed determinations will be to set out the factual material, in a series of narrative chapters, before turning, at the appropriate points to the various matters which fall to be determined by statute. In the draft submissions, certain chapters were numbered "22A", "22B" etc. In these final submissions the chapters have been re-numbered to run consecutively, but with a reference to the earlier chapter numbering for ease of cross-reference.
CHAPTER 2: THE LAW OF EVIDENCE
1. It would perhaps not normally be necessary in the context of a fatal accident inquiry to say much about the law of evidence. But in the present case, it may be of assistance to set out some relevant authority, which may be of assistance to the Court in the context of the inquiry into the cause of the fire.
2. The rules of evidence which pertain at a fatal accident inquiry are those applicable in civil proceedings[15].
Onus of proof
3. Although an inquiry is inquisitorial rather than adversarial in nature[16], the onus of proof rests on the Crown[17].
Standard of proof
4. The essential facts fall to be proved on the balance of probabilities[18].
4.1. The legal concept of proof of a case on balance of probabilities requires the judge, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not: Rhesa Shipping SA v. Edmunds ("The Popi M") [1985] 1 WLR 948, 956C per Lord Brandon of Oakbrook.
4.2. Conversely, a fact is proved on the balance of probabilities if the court holds that it is more likely to have occurred than not, even if it is only marginally more likely to have occurred than not: Dingley v. Chief Constable, Strathclyde Police 1998 SC 548, 600A-C per the Lord President (Lord Rodger of Earlsferry), 603F-G per Lord Prosser; see also on appeal 2000 SC (HL) 77, 89H-90C per Lord Hope of Craighead.
4.3. "In speaking of the balance of probabilities, I think that what the learned Judge meant was that, if more than one inference may be drawn from the proved facts, weighing them together, that will prevail which is the more probable. But if an inference pointing one way is equally consistent with one pointing the other, the matter is left in even scales and he on whom lies the onus of proof fails. Any inference must of course be a natural and reasonable one drawn from the evidence. It need not be irresistible, but must be more consistent with one view than with the other. That it appears to me is a sufficient standard on which a jury in a civil action may act in arriving at their verdict." Hendry v. Clan Line Steamers Ltd 1949 SC 320, 328 per Lord Jamieson.
Sufficiency of evidence
5. An essential fact may be proved by uncorroborated evidence[19].
Weight of evidence: circumstantial evidence
6. The assessment of the weight of the evidence has been said to be a matter of common sense: The Popi M, p. 956B-D per Lord Brandon of Oakbrook. Reference is made to authorities bearing on the approach to the assessment of evidence in the context of consideration of the cause of the fire[20].
Expert evidence
7. The inquiry has heard evidence from a large number of experts in various disciplines.
7.1. Expert evidence is appropriate, and competent, to furnish the Court with information within the expertise of the witness which would not be a matter of judicial knowledge.
7.2. Expert evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case: Davie v. Magistrates of Edinburgh 1953 SC 34, 40 per Lord President Cooper.
7.3. The determination is however, for the Court. The bare ipse dixit of an expert, however eminent, upon the issue in controversy will normally carry little weight: ibid. It is the cogency of the expert's reasoning which is significant.
7.4. Accordingly, the role of the expert witness is to furnish the Court with the necessary criteria and information to enable the Court to form its own judgment by the application of those criteria to the facts proved in evidence: ibid.
8. No expert heard the whole evidence. Only the Sheriff Principal is in a position to drawn conclusions on the basis of the whole evidence, informed, as appropriate, by the information provided by the experts.
The passage of time
9. It is acknowledged that - as submitted on behalf of Strathclyde Fire and Rescue - a relevant factor, among others, in assessing the evidence of any witness is the passage of time since the events being described.
CHAPTER 3: ROSEPARK CARE HOME: LOCATION AND LAYOUT
Location
1. Rosepark Care Home is situated on a plot of land on the north side of New Edinburgh Road, Uddingston. The street layout in the vicinity of the Home is shown on Pro 1739[21].
2. Although the postal address of the home is 261 New Edinburgh Road, the main entrance is at the end of Rosepark Avenue.
Structure and layout: general
3. The Home is built on two floors. Because the site slopes generally from north to south, the main entrance at the Rosepark Avenue end of the Home is in fact on the upper floor. At that end of the building, the Home is a single-storey building (comprising only the upper floor), whereas at the New Edinburgh Road end, the building is two storeys in height[22].
4. There are two stairwells connecting the upper and lower floors: a central stairwell, which includes a liftshaft; and a stairwell at the south west corner of the building.
Layout: upper floor
5. The layout of the upper floor at the time of the fire is shown on Pro 1744.
Main entrance
6. The main entrance to the home is shown in photograph 887I. There were two sets of glass doors with a small porch area between them. The external doors might be left open during the day but the inner two doors were kept locked. There was a secure entry system which operated using a keypad[23]. An internal view of the doors (with the keypad on the door jamb) may be seen in Photograph 870 G1[24].
Foyer
7. Inside the entrance was a foyer area. This may be seen in Photograph 870 G1[25]. The fire alarm panel was on the wall in the foyer at the location marked "IP" on Pro 1744[26]. Opposite the panel was a cupboard (marked "M.E.I." on Pro 1744) which contained electrical equipment including the main fuse board and a distribution board[27].
Offices
8. On the left side of the foyer, looking from the main entrance, were three offices: the first was used by the receptionist; the second was Mr. and Mrs. Balmer's office; and the third was Matron's office, which was used both by Matron and by the nurses[28]. The doors to these offices may be seen in Productions 870 G1 and H1[29].
Lounges
9. To the right of the foyer was the Rose Lounge. This was a lounge and dining area[30]. Off the Rose Lounge was another lounge and dining area called the Gold Lounge, as well as the kitchen, and a conservatory[31]. There was also a small room which was used as a residents' smoking room[32].
Corridor
10. Straight ahead of the main entrance was a firedoor, beyond which was a corridor leading to the south (New Edinburgh Road) end of the building. This was given the designation Corridor 1 during the investigation. About half way along that corridor, through another firedoor, was the central stairwell and liftshaft, giving access to the lower floor. The stairwell was given the designation Corridor 2. Beyond the stairwell, through a further firedoor, the corridor continued to the corner of the building and then to the far (south west) end of the building, where, through another firedoor, there was a second stairwell leading to the lower floor. This corridor was divided into two sections by a firedoor located about half way between the central stairwell and the corner of the building. The section of corridor between the central stairwell and the firedoor was designated Corridor 3. The section of corridor beyond that firedoor to the south-west stairwell was designated Corridor 4. The part of that corridor from the firedoor to the corner was designated Corridor 4a; the part from the corner to the south-west stairwell was designated Corridor 4b. The cross corridor fire doors are further described in Chapter 14 below.
11. The corridors had suspended ceilings, with a void above, through which ran services, including ventilation ductwork. The ventilation system is further described in Chapter 8 of these submissions.
Corridor between the foyer and central stairwell (Corridor 1)
12. The corridor between the entrance foyer and the central stairwell contained five single bedrooms and a dayroom[33].
Central stairwell (Corridor 2)
13. On the right hand side of the central stairwell, as one entered it from the direction of the foyer, were: (a) the staircase down to the lower floor; (b) the door to the lift; and (c) a cupboard used to store domestic supplies[34].
14. A view from the central stairwell through the firedoor to the corridor beyond may be seen in Pro 887O[35]. This photograph shows the firedoor between the central stairwell and the corridor beyond the stairwell.
Corridor between the central stairwell and the Corridor 3/4 fire door (Corridor 3)
15. The corridor between the central stairwell and the fire door contained six single bedrooms (rooms 4, 5, 6, 18, 19 and 20) and a bathroom[36].
Corridor between fire door and far stairwell (Corridor 4)
16. The corridor beyond the fire door contained eleven bedrooms (rooms 7-17), three of which (rooms 9, 13 and 14) were double rooms. When these were all full there would be fourteen residents in that part of the building[37].
17. Just before the corner, on the right hand side, were two cupboards adjacent to one another. The first - given the designation A2 during the investigation - contained an electrical distribution board and was used inter alia by the activities co-ordinator[38]; the second was a linen cupboard. Cupboard A2 is further described in Chapter 13 of these submissions. The electrical equipment contained within the cupboard is further described in Chapter 11[39].
Stairwell at south-west corner of the building
18. At the end of the corridor, beyond a firedoor, was another stairwell to the lower floor.
19. There was a landing at the top of the stair. There was a store cupboard at the far end of the landing. This landing was used inter alia to store the belongings of residents who had died[40].
Layout: lower floor
20. The layout of the lower floor at the time of the fire is shown on Pro 1745.
Area to north of central stairwell
21. The area to the north of the central stairwell contained staff rooms and the laundry. On one side of the corridor was a staff kitchen, shown in Pro 881Q, and on the other side of the corridor a small staff smoking room[41].
The laundry
22. The laundry is shown in photographs in Pro 885. In the period before the fire there were three washing machines in the laundry. The washing machines are further described in Chapter 10 of these submissions.
Central stairwell
23. At the bottom of the central stairwell there was an external fire door[42].
Corridor between central stairwell and fire door
24. This corridor contained five single bedrooms[43].
Corridor between fire door and far stairwell
25. This corridor contained seven single bedrooms and three double bedrooms. This part of the corridor could accordingly accommodate 13 residents[44].
The roofspace
26. The roofspace was divided into eight areas separated by plasterboard barriers[45]. A plan of the roofspace appears in the Chubb Report, Pro 1155 (p. 48)[46]. Section 7 and 8 of the roofspace were above corridor 4. Section 8 was above corridor 4B from the south-west end of the building to above room 10 or 11[47]. There was an access hatch from corridor 4B into section 8 of the roofspace[48]. Access holes had been cut in each of the partitions between the sections of the roofspace[49]. These were meant to be kept covered by hatches, each of which was screwed into place. Access could be obtained to the roofspace through an access hatch in a WC off the foyer. The hatch was kept locked and access required a ladder[50].
External features
27. The external features of the building may be seen in external photographs. In particular:-
887C shows the south and west sides of the Care Home from New Edinburgh Road
887I shows the north side of the building including the main entrance[51]
887K shows the building from the patio outside the day room looking in the direction of New Edinburgh Road[52].
887L shows the same part of the building from a slightly different angle. On the lower ground floor one can see the door at the bottom of the central stairwell[53].
28. A lane runs down the east side of the building between Rosepark Avenue and New Edinburgh Road. This is shown in photographs 887A, 887B, 887C, 887G and 887H[54]. There were two gates across this lane: one at the New Edinburgh Road end and one towards the Rosepark Avenue end[55].
29. The gate at the New Edinburgh Road end of the lane was always kept locked[56]. The gate towards the Rosepark Avenue end of the lane would normally be padlocked during the day and unlocked in the evening[57].
Terminology
30. The layout of the Home presents a problem of terminology. Either the upper or the lower floor could reasonably be described as the "Ground Floor". On the plans prepared by Mr. Dickie, it was the upper floor which is described as the "Ground Floor", with the lower floor being designated the "Lower Ground Floor"[58]. The Fire Service re-designated these, for its purposes, as "First Floor" and "Ground Floor"[59].
31. Usage in the Home itself was inconsistent.
31.1. Allison Cumming, a staff nurse, stated that she would call the lower floor the ground floor[60].
31.2. Mhairi Sadiq, another staff nurse, gave evidence that, on being instructed (in the context of a fire drill) to go to the ground floor, she had started to go downstairs because she had got mixed up between the ground floor and the lower ground floor[61].
31.3. Patricia Taylor, a sister, Isobel Queen, the staff nurse in charge and Irene Richmond, a care assistant on duty on the night of 30-31 January 2004, all used the terms "upstairs" and "downstairs"[62].
31.4. Yvonne Carlyle, a care assistant, who was on duty on the night of 30-31 January 2004, likewise referred to "upstairs" and "downstairs"[63]. Tellingly, when she was referred to a police statement which referred to Mrs. MacLachlan's room (room 20) as being on the "ground floor", she said, "I thought Isa was on the top floor ... I'm sure Isa's room was on the top floor, it was upstairs"[64]. She did not recall other staff referring to the upper floor as "the ground floor"[65].
CHAPTER 4: MANAGEMENT AND STAFFING AT THE TIME OF THE FIRE
Management
1. At the time of the fire Rosepark Care Home was owned and managed by a partnership comprising Thomas Balmer, his wife Anne Balmer, and their son Alan Balmer[66]. The Balmers also managed a second nursing home, Croftbank, although this was owned by a limited company[67]. Rosepark Care Home had been in operation since 1992; Croftbank since 1996.
2. There was no clear-cut allocation of responsibilities amongst the three partners. In practice Mr. Thomas Balmer tended to be involved with business and financial matters, and issues concerning the building, and Mrs. Balmer for social and care aspects of running Rosepark[68]. Alan Balmer was based at Croftbank and undertook a variety of administrative tasks common to both Rosepark and Croftbank[69].
3. During the period before the fire, Thomas Balmer would spend up to 80% of his time at Rosepark. He was typically there from after 8 or 9 am until about 6 pm[70] at least during the week[71]. During the day was based in his office but would generally walk round the building twice a day. In the course of the day he would speak to family members and staff. He would have a daily dialogue with Matron[72]. He would visit the Home during the night two or three times a year[73].
4. Before Croftbank opened, Mrs. Balmer spent 10-12 hours a day at Rosepark, seven days a week. After Croftbank opened, she divided her time between the two homes. When she was at Rosepark she would spend about half her time in the office and about half of the time doing other things[74]. Along with the Matron, she would deal with potential residents and dealt with DSS funding[75].
5. Alan Balmer was based principally at Croftbank[76] and had no office at Rosepark[77]. He had first become involved in the care home sector in 1996 when Croftbank was opened[78]. From that date until the fire in January 2004 he was the administrator of Croftbank[79] and was the person responsible for health and safety (including fire safety) at that Home. He became a junior partner at Rosepark in 1997 or 1998[80]. He had limited involvement on-site at Rosepark[81] although he would be in charge while his parents were on holiday[82]. At other times, he would visit Rosepark irregularly a few times a week[83]. However he did have responsibilities in relation to Rosepark: he did all the payroll and purchasing for both homes[84], dealt with the financial aspects of residents' contracts for both homes[85], would generate documents which were common to both homes[86] and prepared financial reports for both homes[87]. He had authority: (a) to instruct Mr. Reid to undertake the risk assessment exercise undertaken in January 2003 for both homes; and (b) to enter into a contract with George Muir in January 2004 for the fire alarm system at Rosepark[88].
6. There were no formal partnership meetings[89].
7. Thomas and Anne Balmer were the registered persons[90]. The partnership employed the staff at Rosepark[91].
Matron/Care Manager
8. The Care Manager of the Home at the time of the fire was Sadie Meaney. She was an extremely experienced nurse, who had devoted her career to the care of the elderly. She qualified in 1966. She had over the years been employed as Sister, Assistant Manager or Assistant Matron in various care settings, both in the United Kingdom and elsewhere. She joined the staff at Rosepark as a Staff Nurse in April 1998 and became Matron in December 1998[92]. In 2002 or thereabouts her job was renamed "Care Manager"[93].
9. As Matron and Care Manager, Ms Meaney was the senior nurse responsible for the management and delivery of nursing services[94]. She was responsible to Mr. and Mrs. Balmer[95]. They had no professional knowledge in nursing care and depended on Matron for that[96]. She had to liaise with the owners in the interests of the residents to make sure that they had their needs met[97]. She had responsiblities in relation to training[98].
10. Matron typically worked 9 am to 5.30 pm. During a working day she would sometimes be in her office but also out around the Home dealing with matters which arose around the Home and liaising with visiting therapists, doctors and so on[99]. From time to time she had visited the Home in the evening, up to about 11 pm[100]. She was rarely in the building during the nightshift[101]. If she required to communicate something to the staff on the nightshift, she would write in the communications book or, exceptionally, hold a meeting during the day to which night staff were expected to attend[102]. Nightshift staff had very little direct contact with her[103].
11. The relationship between Matron and management who were present in the Home on a day to day basis was a sensitive one. The Balmers expected Matron to keep them informed without reservation about every aspect of day to day management within the Home[104].
Staff
12. The staff of the home comprised nursing staff, care staff, domestics, kitchen staff, an activities co-ordinator and the maintenance man[105]. In all, the Home employed over 50 staff[106].
13. Certain of the Home's documentation referred to "Heads of Department". The "departments" were: catering, domestics, nursing, maintenance and the office[107]. The last two effectively consisted of one employee each[108].
14. The Catering and Domestic Heads of Department were answerable to Mr. and Mrs. Balmer, although in practice they would go to Matron. Joe Clark, the Maintenance man took his instructions from Thomas Balmer[109].
Nursing Staff
15. The role of the nursing staff was to take charge of the Home and look after the clients and nursing duties. They supervised other nurses and carers and whatever staff were in the building at the time. There was a hierarchy of nursing staff under Matron[110].
Sisters
16. There were three Sisters: Eileen McCarthy, Patricia Taylor, and Eleanor Ward (who was on the nightshift)[111]. Eleanor Ward worked part-time[112].
Staff Nurses
17. Staff Nurses (further divided into Senior Staff Nurses and Staff Nurses) had a qualification either as a registered general nurse or as a registered mental nurse[113]. The staff nurses on the day and back shift at Rosepark Care Home at the time of the fire were Allison Cumming, Phyllis West, Mhairi Sadiq, of whom Allison Cumming was full time and Phyllis West and Mhairi Sadiq were part-time[114]. The staff nurses who worked on the nightshift were Isobel Queen, Flora Davidson, Catherine Melia, Mary Rodgers and Jane Norton[115].
18. The job description for staff nurses stated that they were responsible to matron and senior management, and were in charge of enrolled nurses, auxiliary nurses and domestics[116]. "Senior management" in this context was understood by staff nurses to mean Mr. and Mrs. Balmer[117].
Enrolled Nurses
19. Enrolled nurses had only two years training (whereas the RGNs and RMNs had three)[118]. The practical role of each of these members of nursing staff was not significantly different although the grade of the member of staff determined who was in charge[119]. Linda McLoughlin, Lorraine Edwardson and Louise Smith were enrolled nurses on the day and back shifts[120]. Enrolled nurses on the nightshift were Rosemary Buckley, Elizabeth Hetherington and Margaret Holmes, who were all part-time[121].
Part time nursing staff
20. Rosepark employed nurses both on a full time and on a part time basis. All of the nightshift staff were part-time, working two or three days a week[122].
Bank staff
21. A bank nurse is a nurse who is not employed full time or part time at the Home but is a nurse who might by arrangement come in on an ad hoc basis to work a particular shift. From time to time Rosepark employed bank nurses particularly on the night shift[123].
The concept of "nurse in charge"
22. The nurse in charge had overall responsibility for the Home if Matron was not there[124]. The senior nurse present would be the nurse in charge[125]. If there were two nurses of equivalent grade on duty and one was full time and the other part time, the full time nurse would be the nurse in charge[126]. A bank nurse might on occasion be the nurse in charge[127].
Care Staff
23. Carers were employed to assist the nurses with the general care of the clients[128]. There were certain care staff who routinely worked nightshift and other care staff who would work early and back shifts[129]. Nightshift care staff were Yvonne Carlyle, Irene Richmond, Collette Wallace, Margaret Main, Allison Hughes, Margaret Higgins and Christine McLucas. They were all part-time[130].
Domestic staff
24. Domestics were employed to clean the building and the rooms[131].
Kitchen staff
25. Kitchen staff prepared the food and cleaned the dining area[132].
Activities Co-ordinator
26. The activities co-ordinator was Margaret McCondichie[133].
Maintenance man
27. The Home employed a maintenance man and driver, Joe Clark[134]. He had been employed since 1993[135]. He inter alia undertook maintenance duties about the home[136].
28. Mr. Clark had a number of duties in connection with fire safety. He undertook the weekly fire alarm test. He also had a role in relation to fire drills, in that he selected an area of the home, triggered a smoke detector in that area, and would watch to see how the staff performed[137]. There was evidence that he had also led discussions following fire drills[138]. Staff looked to him for advice in relation to responding to fire alarms[139]. Mr. Clark had, however, no expertise in matters of fire safety[140].
Shift patterns
29. The nursing and care staff at Rosepark worked in shifts. There were two dayshifts and a nightshift. The early dayshift was 7 am to 2.30 pm for qualified staff and 7 am to 2 pm for carers[141]. The late dayshift or backshift was 2 pm to 9.30 pm for trained staff and 2 pm to 9 pm for carers[142]. The nightshift for carers was 8.30 pm to 7 am[143]. In addition, two carers worked 5 pm to 10 pm[144].
30. On the early dayshift there would typically be two nurses (apart from Matron), six or seven carers and four or five domestics. On the backshift there would be two nursing staff (apart from Matron), three or four carers and a domestic[145]. An additional one or two carers came in between 5 pm and 10 pm (formerly 9 pm) to help put residents to bed or to get them ready for bed and to do laundry[146].
31. On nightshift there were two members of the nursing staff (who might be any combination of sister, senior staff nurse, staff nurse and enrolled nurse) and two carers[147].
32. When it came to night staff one was essentially dealing with a different group of people - in terms of both nursing and care staff - from day staff. So, for example, Phyllis West, who had worked with all the dayshift staff at one time or another, had never worked with any of the nightshift staff[148].
33. Joe Clark and Margaret McCondichie did not work shifts. They worked different hours from the other staff, but would have been around during the day[149]. Kitchen staff would be there to prepare breakfast, lunch and dinner[150]. During the day other people - for example, relatives and friends of residents - might come into the Home[151].
34. A key difference between dayshift and nightshift was, accordingly, that during the night there were only four staff on duty. During the day, not only were there significantly more staff (including Matron and Mr. and Mrs. Balmer) about, but one could also expect other people to be present in the building.
CHAPTER 5: RESIDENTS ON 30-31 JANUARY 2004
Introduction
1. At the time of the fire Rosepark Care Home was registered to accommodate 43 residents. If the home had been full on 30-31 January 2004, it would have contained 18 residents downstairs and 25 upstairs[152].
2. The residents of care homes are people who, for one reason or another, are not capable of living independently. They typically have deficiencies in their physical or mental capacity. Typically they have health problems - and, in the context of a home such as Rosepark, the health problems associated with age. At any given time, in Rosepark, at the time before the fire, one would have expected to find at Rosepark residents who had severe mobility problems and residents who had relatively severe dementia[153].
3. Over time, the level of dependency of residents in care homes had changed. Ms Meaney made the point that when she started in her career in 1966 most homes had been residential, with residents who were relatively independent, but that over time the residents of care homes had come to require increasing levels of nursing care[154]. Rosepark provided nursing care. However even within that context, over the life of the Home, the level of dependence of the residents had increased[155].
Residents on 30-31 January 2004
4. On the night of 30-31 January 2004 the rooms in corridors 3 and 4 on the upper floor were occupied as follows[156]:-
Corridor 3
4 - Mary Dick (survived)
5 - Jean Patterson (survived)
6 - Richard Russell (survived)
18 - Margaret Gow (rescued from scene; died in hospital)
19 - Jessie Hadcroft (survived)
20 - Isabella MacLachlan (rescued from scene; died in hospital)
Corridor 4
7 - empty
8 - empty
9 - Julia McRoberts (deceased); Annie (Nan) Stirrat (deceased)
10 - Robina Burns (rescued from scene; died in hospital)
11 - Isabella MacLeod (rescued from scene; died in hospital)
12 - Margaret Lappin (deceased)
13 - Mary McKenner (deceased); Ellen (Helen) Milne (deceased)
14 - Helen (Ella) Crawford (deceased); Annie Thomson (deceased)
15 - Margaret Dorothy (Dora) McWee (deceased)
16 - Thomas Cook (deceased)
17 - Agnes Dennison (deceased)
5. There were only 12 residents in Corridor 4 because there had been some recent deaths: there was no policy of restricting the number of residents in that area to fewer than 14[157].
6. The residents in these corridors were all elderly. They were all, by reason of mental or physical condition, or both, dependent for the ordinary activities of daily life on the staff to at least a degree, and a number of them were highly or totally dependent[158].
7. As a group, the residents in Corridor 4 were a particularly heavily dependent group, even by comparison with other groups of residents who would be in the Home from time to time. As a group, they were more heavily dependent than the other residents who were living in the Home at the time of the fire[159].
Corridor 3
8. Mary Dick (room 4) was mobile with a stick but had dementia and was very confused[160].
9. Jean Patterson (room 5) was 62 years old. She had arrived at Rosepark on the morning of 30 January 2004 from Strathclyde Hospital. She had a complex medical history, including arthritis, hypertension, depression, gastric ulcers, schizophrenia and hypothyroidism[161].
10. Margaret Gow (room 18) was 84 years old. She had moved into Rosepark in May 2002. She was fairly mobile with a zimmer or rollator and could communicate well. She was assessed as low dependency[162].
11. Jessie Hadcroft (room 19) had dementia. She could become aggressive and difficult and two staff required to help her out of bed and walk with her[163].
12. Isabella MacLachlan (room 20) was 93 years old. She had moved into Rosepark in June 2003 when she was diagnosed with Alzheimer's disease following a fall. She was registered blind. She suffered from osteoporosis and was very stooped. By the time of her death she was very confused and was very dependent on the staff for her general care[164]. She required constant staff supervision to ensure her personal safety[165]. Although she was able to walk independently she required supervision to make sure that she did not fall or to into places where she might be harmed[166]. She could have got out of bed herself, although in terms of safe moving and handling, one nurse would require to be present to assist her[167]. She was assessed as being highly dependent[168].
13. Richard Russell (room 6) was immobile although he could weight-bear. To transfer him in and out of bed required two members of staff using a stand aid[169].
Corridor 4
14. Robina Burns (room 10) was 89 years old. She had moved to Rosepark in March 2002. She suffered from angina and was unsteady on her feet. She could mobilize for short distances using a zimmer in the Home or a walking stick outside. If her daughter was taking her out, she would use a wheelchair, and she sometimes needed a wheelchair to get to the dayroom. She could get in and out of bed independently[170].
15. Thomas Cook (room 16) was 95 years old. He had moved into Rosepark in November 2003. He was registered blind, had angina and pernicious anaemia and was doubly incontinent. His mobility was slow[171]. He could get in and out of bed and walk with a stick, although a member of staff would be required to assist him because he was blind[172]. He preferred to sleep in his day clothes[173].
16. Helen (Ella) Crawford (room 14) was 85 years old. She had moved into Rosepark Care Home on 4 January 2004 having previously been in another Care Home. Although she could walk unaided without a stick, she suffered from Alzheimer's disease and was very confused, and accordingly required supervision for her own safety[174]. Because of her mental condition she was assessed as requiring one member of staff to assist her in transferring in and out of bed and in walking[175].
17. Agnes Dennison (room 17) was 95 years old. She had moved into Rosepark on 25 January 2004 following an operation to deal with a broken femur. She was mentally competent but dependent in relation to her mobility. She needed two staff to help her walk with a zimmer. She required two staff to assist her to stand and to get in and out of bed. She was prone to falling[176].
18. Margaret Lappin (room 12) was 83 years old. She had moved into Rosepark Care Home in June 2003 from another nursing home. She was mentally alert, but had severe mobility difficulties, since she was a double amputee. She had an electric wheelchair and was dependent on staff to move her into and out of the chair. She could not get in or out of bed without assistance[177]. She needed two staff to move her in and out of bed and they would do this using a lifting belt[178]. Mrs. Lappin was assessed as being highly dependent by reason of her mobility difficulties[179].
19. Mary McKenner (room 9) was 82 years old. She had moved into Rosepark in October 1998. She suffered from severe dementia. She was immobile and was unable to communicate her needs. She was disorientated from time, place and person and could not complete any activities of daily living without assistance and prompting of staff. It would take two or three staff using a stand aid or a lifting belt to move her safely from her bed into a wheelchair or onto the toilet or from chair to chair[180]. She was assessed as totally dependent[181].
20. Isabella MacLeod (room 11) was 75 years old. She had moved into Rosepark Care Home on 3 December 2002. Although she had dementia she could communicate clearly. She could walk with two sticks and could get in and out of bed independently though she also sometimes used a wheelchair and she needed supervision with her personal hygiene and things like that. She was assessed as being independent[182]
21. Julia McRoberts (room 9) was 90 years old[183]. She had moved to Rosepark in June 2000[184]. Shortly before the fire she had been moved to room 9 on a temporary basis because she had a leg ulcer[185]. Her mobility was poor. She weighed 120 kg and required the assistance of two staff to transfer in and out of bed. Although she could walk short distances with a zimmer, she tended to use a wheelchair more than a zimmer[186]. By reason of her mobility problems, she was assessed as highly dependent[187].
22. Margaret Dorothy (Dora) McWee (room 15) was 98 years old. She had moved into Rosepark Care Home in December 2002 following a stroke and surgery to correct a fractured femur[188]. She suffered from transient ischaemic attacks. She had limited mobility: although she could walk a little with a zimmer, she was usually moved around in a wheelchair. She had very poor eyesight. She suffered from Charles Bonnet Syndrome, a condition which resulted in her seeing the room full of colours, patterns and images, and which was very distressing[189]. She required the assistance of a member of staff to get in and out of bed and was assessed as highly dependent[190].
23. Ellen (Helen) Milne (room 13) was 81 years old. She had moved into Rosepark in 2002. She suffered from multiple health problems, including dementia. In December 2003, her left leg had been amputated below the knee[191]. She had been unable to mobilize before the operation (requiring two members of staff to move her in and out of bed) and was even less mobile thereafter[192]. She had been catheterized on the backshift on 30 January 2004[193].
24. Annie (Nan) Stirrat (room 9) had lived at Rosepark since 1995. She suffered from dementia. By the time of her death she was very frail, was completely immobile and could not communicate any of her needs. She could not really do anything for herself[194]. She required the assistance of two nurses to get in and out of bed[195]. Mrs. Stirrat was assessed as totally dependent[196].
25. Annie Thomson (room 14) was 87 years old. She had moved into Rosepark Care Home on 9 January 2004, following an unsuccessful hip replacement operation[197]. She was unable to walk at all and would require two members of staff to transfer her in and out of bed[198]. She had an in situ catheter which would require to be dealt with if she had to be moved during the night[199]. She was dependent on staff to a significant degree[200].
CHAPTER 6: CONSTRUCTION OF ROSEPARK HOME
Background
1. In late 1989 or early 1990 Thomas and Anne Balmer identified care for the elderly as an emerging business opportunity. Existing care provision in the area appeared to them to be unsatisfactory, and they determined to construct a purpose-built Home up to the standard of the day and providing the best of care[201]. They had no previous experience of running a care home[202]. Thomas Balmer's background was in the food industry[203]. Anne Balmer's experience was secretarial and administration[204].
2. Mr. and Mrs. Balmer acquired an old house which sat on the site at 261 New Edinburgh Road. They had the existing house demolished and set about preparing plans for the building[205]. After an abortive experience with another architect[206], Mr. Balmer contacted William Dickie, an architect based in Motherwell[207].
3. In relation to the construction of the Home:-
3.1. Planning permission was required; and
3.2. Building warrant was required[208].
4. Before the Home could open, it required to be registered with Lanarkshire Health Board[209].
Mr. Dickie's instructions at the outset
5. Mr. Balmer met Mr. Dickie at his office to discuss the proposed project. Mr. Balmer's instructions were to design a Care Home to suit the site available[210]. When Mr. Balmer was first asked what he instructed Mr. Dickie to do he said this[211]:-
"Well I spoke with Mr. Dickie of our intention and we made arrangements to visit the site and for Mr. Dickie to come up with a plan suitable to the site and that's eventually what happened."
And when pressed as to what his brief was to Mr. Dickie when they first met, Mr. Balmer said this[212]:-
"To prepare plans for ... suitable plans for to build Rosepark Care Home"
Planning permission
6. Mr. Dickie prepared plans for the purposes of submitting an application for planning permission. These were submitted first to Lanarkshire Health Board in August 1990[213] and discussed with Health Board representatives at a meeting in September 1990[214]. Mr. Dickie submitted, on behalf of Mr. and Mrs. Balmer, an application for planning permission. Planning permission was given on 6 March 1991[215].
Building warrant
7. On 4 December 1990 Mr. Dickie submitted an application to Motherwell District Council, on behalf of Mr. and Mrs. Balmer, seeking building warrant[216]. The plans lodged with the application for building warrant included, as would be expected, significantly more detail than those which had been lodged for planning permission.
8. On 1 February 1991 Hugh Gibb, the building control officer, wrote to Mr. Dickie listing 23 matters which required attention. These included[217]:_
"10. The position of all self-closing, fire-resistant doors must be clearly indicated on the submitted plans.
...
12. The position of the required cavity barriers to the roof space, suspended ceiling and timber kit should be clearly indicated on the completed plans.
...
19. The dimensions and position of the noted mechanical extract fans must be clearly indicated on the submitted plans."
Mr. Dickie's assistant, Mr. Murray, met with Mr. Gibb and amendments were made to the drawings with a view to satisfying Mr. Gibb's requirements[218].
9. On 9 May 1991 Motherwell District Council granted building warrant subject to the conditions: (a) that the building be erected in accordance with the plans lodged with the application and the particulars given in the application; and (b) that the building be erected in accordance with the Building Standards (Scotland) Regulations as amended[219].
10. Of significance in the context of the present inquiry are the following features of the warranted drawings:
Compartmentation
10.1. The drawing showed the following:-
10.1.1. The stairwells were to be enclosed in separate compartments.
10.1.2. The corridor between the two stairwells was to be sub-divided by a fire door - the corridor 3/4 fire door and fire doors were specified on either side of the central stairwell and between corridor 4 and the south-west stairwell. The drawing did not specify the provision of glazed panels in the fire doors[220].
10.1.3. The drawing showed the location of cavity barriers. A note to the drawing specified: "Cavity barriers in loft space - 12.7 mm plasterboard fixed to both sides of truss + 100 mm Rockwool blanket down to susp. Ceiling". A sidenote further specified "also between mid-floor & susp. Ceiling".
Electrical installation
11. The drawings identified the location (in the case of bedrooms, typical location) of light fittings, light switches and power points. A note to the drawings specified[221]: "All electrical work to be carried out in accordance with the latest I.E.E. Regulations", The relevant edition of the IEE Regulations was the 15th edition[222].
Mechanical ventilation
12. The warranted drawings specified an extract ventilation system. In particular, the plan of the ground (upper) floor) specified a run of ventilation ducting serving the central stairwell and corridors 3 and 4[223].
12.1. The run of ductwork was shown to start approximately opposite the door to room 14, to run the length of corridor 4, through the line of the corridor 3/4 firedoor, along the length of corridor 3, through the line of the wall of the central stairwell, and terminating in the central stairwell. At various points along the run of ductwork, were symbols indicating where vents shoud be installed.
12.2. A riser to an extract fan was indicated opposite room 17.
12.3. Spurs were shown connecting the run of ductwork to each of cupboard A2 and the linen cupboard.
12.4. In the course of corridor 4, the run of ductwork was shown crossing cavity barriers at the partition between rooms 10 and 11 and just to the east of the corridor 3/4 firedoor.
13. A note to the drawing specified:
13.1. That the mechanical ventilation was to provide a specified number of air changes per hour (the number varying with the type of space being ventilated);
13.2. That it was to be ducted through the roof to external air;
14. An asterisk next to that note indicated a side-note which read as follows:-
"Ventilation ducts shown dotted.
Fans through roof shown [symbol]
Fire dampers to duct where passing through floor, cavity barrier or stair enclosure".
15. This note had been added in response to Mr. Gibb's letter of 1 February 1991[224].
Compliance of drawings with building standards; adequacy for construction purposes
16. The warranted drawings complied with the building standards which were applicable at the time, namely the Building Standards (Scotland) Regulations 1981, as amended[225]. However, the information on them would require to be amplified for the purposes of construction[226].
17. The information on the warranted drawings about the electrical installation would require to be amplified by a further process of design. For example, the warranted drawings did not indicate the locations of the main electrical board and sub-boards[227]. Mr. Ross confirmed that he would usually have a drawing showing at least the points to which the cables were to run[228].
18. The information on the warranted drawings about the mechanical ventilation system was not sufficient for the installation of the system. A further process of detailed design would be necessary[229]. Ordinarily, this would be undertaken either by a specialist consultant or a competent ventilation contractor[230]. It is a process which would require a degree of expertise[231].
The construction process
Duration of the build
19. Work started on site in or about April 1991 (although it was stopped by the building control officer on 25 April pending grant of the building warrant)[232]. On 5 February 1992 a completion certificate was issued under the Building (Scotland) Act 1959[233].
Contractual arrangements and Mr. Balmer's role
20. Mr. Balmer's intention from the outset had been to co-ordinate the project himself[234]. He placed separate contracts with different contractors for the various elements of the work[235]. These included, inter alia, of significance in relation to this inquiry, Star Electrical Services (Strathclyde) Ltd as electrical contractors (and, in addition, to install the mechanical ventilation system) and Comtec Services Ltd to supply the fire alarm system, fire extinguishers and nurse call system[236].
21. According to Mr. Balmer, the contracts took the form of a simple acceptance of a quotation to design, supply and install the relevant works[237]. These quotations were sent directly to Mr. Balmer rather than to Mr. Dickie[238]. Mr. Balmer himself supplied the joinery materials. The other materials were supplied by the individual contractors[239]. He engaged a quantity surveyor for the sole purpose of taking off the quantities which he required to supply, but for no other purpose[240]. There was no bill of quantities[241].
22. Mr. Balmer was on site throughout the construction of the building. Most days he would be on site before 8 am and would remain there until about 6 pm. He supplied some of the materials. He assisted some of the tradesmen[242]. He had prepared a plan at the outset and co-ordinated the work of the different trades when the plan went asunder. He issued verbal instructions for changes to the works[243]. He dealt with the building control officer in relation to changes to the works[244]. He did not have regular site meetings[245].
23. As Mr. Balmer accepted, in effect he set himself up as the main contractor[246] and took on the responsibility of clerk of works[247]. Although he had previously co-ordinated the trades for the construction of three private houses[248], he was not qualified in any building trade[249], He had never been involved in a building which involved the concerns for compartmentation inherent in the construction of a care home or extract ventilation systems of the sort installed at Rosepark[250].
Star Electrical Services (Strathclyde) Ltd
24. The electrical work was contracted to Star Electrical Services (Strathclyde) Ltd[251]. Star Electrical Services (Strathclyde) Ltd were a well-established firm of electrical contractors. The principal of the company was George Harvie.
25. The Star Electrical employees who did most of the work on site were Alexander Ross and an apprentice, although from time to time other electricians were also engaged on work at Rosepark[252]. Although Mr. Ross had no formal responsibility as foreman, he was the principal point of contact both for other electricians and also for Mr. Balmer[253].
26. Mr. Harvie did not undertake installation work himself[254] although he kept an eye on the work which his electricians were undertaking[255]. He would walk round the site after work checking that everything was in order, but he would not normally, if a distribution box had been fitted, take off the front plate to check that it had been wired correctly[256].
Electrical installation
27. Mr. Ross worked from the warranted drawing. Star Electrical had a copy of this drawing which was pinned to a wall at Rosepark and marked up[257]. The location of the distribution boards was agreed between Star Electrical Services (Strathclyde) Ltd and Mr. Balmer[258]. Mr. Ross would deal directly with Mr. Balmer in relation to such matters as the positioning of sockets, switches and lighting points[259].
28. Once Mr. Ross knew where the distribution boards were going to be, Mr. Ross would work out the best routes for the cables[260]. Before the partitions, floors and ceilings were in place he would lay the cable runs from the mains to the main distribution board, from there to the subsidiary distribution boards, and from the distribution boards to the appliances[261]. Once the cable runs had been laid, the distribution boards would be installed[262]. Towards the end of the job, the power points, light fittings etc would be installed[263].
Mechanical ventilation system
29. Star Electrical Services (Strathclyde) Ltd also agreed to instal the ventilation system. There was a direct conflict between Mr. Balmer and Mr. Harvie as to who took the initiative in relation to this matter, but no dispute as the outcome. According to Mr. Harvie, he told Mr. Balmer that Star Electrical were not ventilation engineers but that they had done similar work, albeit not on such a big scale[264]. According to Mr. Balmer, Mr. Harvie assured him that they did it "all the time" and that they had just installed such a system at Law Hospital[265].
30. According to Mr. Balmer, the quotation was to "design, supply and install" the ventilation system[266]. The quotation contained no reference to fire dampers[267]. According to Mr. Harvie the quotation was for connecting and supplying the fans and the ducting and any grilles that were required[268].
31. Before this contract, Star Electrical had limited experience of mechanical ventilation systems. They had undertaken smaller scale systems involving ducting on other jobs[269].Mr. Ross had, personally, only been involved in installing fans in toilet areas, involving lengths of ducting of 2-3 metres[270] and pre-fitted grilles[271]. He was surprised when Mr. Harvie instructed him to install the ducting[272]. He did not express his surprise to Mr. Harvie[273].
32. Mr. Harvie did not know what a fire damper was. He had never seen one. He was unfamiliar with the concept of fire-stopping, did not know the function of a cavity barrier and did not recognise a photograph of a Rockwool cavity barrier at Rosepark[274]. Tellingly, when shown Pro 850A he took the view that the gaps around the ducting were no more than a cosmetic issue[275]. His impression was that, in the similar work that Star had done before, it had always been the main contractor who fitted dampers an firewalls. Star had no experience of making holes in firewalls which was something they would leave to a joiner[276]. He was not qualified to specify the fan required to achieve the performance specification on the drawings[277].
33. Mr. Harvie took the drawing to the technical department of Vent-Axia, specialist suppliers of ventilation equipment. He asked Vent-Axia for a quote for the work that Star always carried out, namely the fans, ducting and grilles[278]. They marked on the drawing a note of the required sizes and number of fans to meet the performance specification. This was a service which Vent-Axia offered free. Vent-Axia also gave an estimate for the equipment required[279]. A Vent-Axia representative met Mr. Harvie on site[280].
34. Although Mr. Ross had the warranted drawings available to him, he did not refer to the drawing when carrying out the installation, but worked to Mr. Balmer's instructions[281]. Mr. Balmer indicated the points where he wanted the inlet and outlet points to be and Mr. Ross ran the ducting within the suspended ceiling to fit those positions. The ducting generally followed the line indicated on the warranted drawings[282]. Circular ventilation grilles, through which air would be extracted from the corridor into the ventilation ducting, were fitted inter alia in corridors 4 and 3[283]. Joiners who were on site assisted with fitting the ducting so that it ran out to the roof, and by cutting holes as required in the ceiling tiles and in partitions through which ducting required to pass[284].
35. When Mr. Ross carried out this work, he had never heard of, nor had he fitted, a fire damper. He had not been aware of the Note to the drawing which referred to fire dampers when he carried out the work. He was not provided with any fire dampers and did not install any[285]. He was unfamiliar with the term "fire stop"[286]. The holes through partitions were cut by joiners. He understood that his responsibility was simply to lead the ducting through the hole and that someone else would finish off the hole afterwards. He was not provided with any materials for the purpose of making a seal[287].
36. Mr. Balmer was aware of the note on the warranted drawing which specified fire dampers"[288]. He deduced from reading that note what the purpose of a fire damper was. However he had never seen a fire damper before, did not know what a fire damper looked like, and did not ask anybody else what a fire damper was. He did not recall any reference to fire dampers in any discussion he had with Mr. Harvie and did not raise with Mr. Harvie whether or not his quotation included for fire dampers. He never saw any design relating to the ventilation system produced by Mr. Harvie or anyone else. He did not ask to see a working drawing of design details relating to a ventilation system. He did not ask any Star Electrical employee or Mr. Harvie whether they had fitted fire dampers[289].
37. While the work was ongoing, Mr. Balmer saw ductwork passing through the cavity barriers at the firedoor between corridor 3 and corridor 4 and in corridor 4 and at other locations[290]. He assumed that the fire damper would be contained within the ductwork itself[291].
Amendment to the Building Warrant
38. On 21 November 1991 Mr. Dickie lodged, as agent for Mr and Mrs Balmer, an application for amendment to the building warrant. This covered changes to the layout of the staff rooms and laundry room, repositioning of washhand basins, alterations to the sluice and DSR, the provision of stores and the layout of the main entrance foyer[292]. An amendment to the warrant was granted on 2 January 1992 subject to the condition "that the amendment shall be effected in conformity with the plans lodged with the application and in accordance with the particulars given in the application and in the schedule thereto"[293]. The drawings to which this amendment related made no change in relation to the mechanical ventilation system and the notes relative to the cavity barriers and electrical work remained unchanged[294].
Attendance on site by Mr. Dickie
39. Mr. Dickie visited the site on occasion. He was seen there by at least contractors[295]. He himself recalled being there not more than three times[296]. According to Mr. Balmer, Mr. Dickie was "on site continually"[297]. "Mr. Dickie came round on a, it could be weekly or two weekly, but on a very regular basis to have a walk through the building, etcetera, etcetera"[298]. "... he dropped in on a regular basis and on any other occasion that I specifically asked him to be for a particular purpose"[299]. Mr. Dickie certainly dealt with the application for amendment to the building warrant[300]. He also attended to deal with a specific issue relating to the timber kit[301]. Mr. Murray attended the site only once, to discuss a small discrepancy relating to the timber kit with Mr. Balmer[302].
Mr. Dickie's role
40. The contract between Mr. Balmer and Mr. Dickie was not committed to writing[303]. There was an apparently stark conflict of evidence as to what Mr. Dickie's role was. Mr. Dickie's position that he was engaged on a "plans only" basis rather than on a "full service" basis[304]. Mr. Balmer's position was that Mr. Dickie's fee covered "Preparing the plans for planning, building control, obtaining necessary warrant and regular inspection of the building"[305]. Mr. Balmer also stated that Mr. Dickie's function when he visited the site was to satisfy himself that "the plans were being built according to the plans submitted"[306] and that his understanding was that "Mr. Dickie was supervising ... on a regular basis ... it was a supervisory capacity. It may have been limited, it may have been as a favour, but my understanding is, he was, he was definitely supervising. Probably arm's length, but supervising nonetheless"[307].
41. The appropriate finding is that Mr. Dickie was engaged on a plans-only basis and that his attendance at the site from time to time did not imply that he was undertaking a full service responsibility.
41.1. Mr. Balmer's initial oral discussions with Mr. Dickie only related to the preparation of plans.
41.2. An all-inclusive fee was agreed at the outset, when the only services which had been discussed concerned the production of plans.
41.3. In a full service arrangement, the architect would expect to have assisted the client in letting contracts[308]. He would also be involved in the development (whether by the architect or by others) of construction drawings and would expect to see those[309]. Mr. Dickie was not involved in either of these activities. He had limited knowledge of the contractors and consultants involved in the project[310].
41.4. In contracts where Mr. Dickie was offering a full service, there would be regular site meetings. There were none at Rosepark[311].
41.5. The mere fact that the architect has responded to requests from the client for information or assistance, or, indeed, attended on site to deal with a particular issue, does not of itself imply that the architect was engaged to undertake periodic inspections, which would be a quite distinct and separate operation[312].
41.6. Mr. Balmer accepted that Mr. Dickie's attendance at the site may simply have been as a favour for a client from whom Mr. Dickie might anticipate some future work[313].
Completion of the electrical installation
42. In terms of the IEE Regulations, the electrical installation should have been inspected and tested on completion[314] and a completion certificate issued[315].
43. No such inspection and testing was undertaken.
43.1. Alexander Ross did not inspect or test the installation in accordance with the IEE Regulations on completion[316].
43.2. Mr. Ross was unaware of anyone else undertaking such an inspection or test[317].
43.3. Mr. Harvie participated in a walk-round the building on completion, but did not himself undertake an inspection to IEE standards or testing[318].
43.4. Mr. Harvie believed that the system had been tested, but this belief was based on an assumption that - in accordance with what Mr. Harvie regarded as normal procedure - Mr. Ross had undertaken the necessary testing in circumstances where nothing untoward had been drawn to Mr. Harvie's attention[319].
44. Mr. Balmer was not given - and did not ask for - any paperwork by Star Electrical Services (Strathclyde) Ltd[320].
45. It would not have been Mr. Harvie's practice to inform the owner on completion of an electrical installation that there should be a periodic electrical inspection[321].
46. On 14 January 1992 Mr. Harvie signed a certificate of compliance of the electrical installation[322]. This stated:
"We, Star Electrical Services (Strathclyde) Ltd ... in accordance with the provisions of section 9(3) of the Building (Scotland) Act 1959 as amended ... hereby certify that the electrical installation in the building at New Edinburgh Road, Viewpark, Uddingston, has been completed by me/under my supervision and to the best of my knowledged and belief complies with the Building Standards (Scotland) Regulations 1981, as amended and with the relevant conditions of the warrant for the erection/alteration/extension of the said building granted by the Motherwell District Council ..."
47. There was recovered from the filing cabinet in the Balmers' office[323], a document (Pro 570) which bore to be a "Form of Completion and Inspection Certificate" relating to Rosepark Nursing Home. This was in the style provided for in the 16th edition of the IEE Regulations[324]. It bore to certify that the installation at Rosepark Care Home had been designed, installed and inspected in accordance with the IEE Regulations. The certificates in respect of design and installation bore to have been issued by "Alex Ross Electrical" and bore in manuscript, against the word "Signature" the words "A Ross" and the date 30/1/92. The certificate in respect of inspection and testing also bore to have been issued by "Alex Ross Electrical" and bore in manuscript, against the word "Signature" the words "A Ross" and the date 1/2/03. The certificate bore to recommend that the installation be further inspected and tested after an interval of not more than one year.
48. This document does not provide any basis for concluding that the electrical installation at Rosepark had in fact been inspected and tested in the terms set out in the Certificate[325]. It was prepared by Thomas Balmer in early 2003 as an "aide memoire" with a view to asking Mr. Ross to complete a form for exhibiting to a potential insurer for the purpose of obtaining a quotation.
Application for certificate of completion
49. On 17 January 1992, Mr. Murray signed an application to Motherwell District Council for a certificate of completion, on behalf of Mr. Dickie. This was done in Mr. Dickie's absence[326].
50. Mr. Dickie's practice was to make such an application whether he was acting on a plans only or on a full service basis[327]. Mr. Murray had authority to sign such applications on Mr. Dickie's behalf.
51. The application was in the following terms[328]:-
"We Mr & Mrs T Balmer, 1 Caldwell Crescent, Motherwell, apply under section 9 of the Building (Scotland) Act 1959, as amended ... for a Certificate of Completion in respect of the works of erection ... of the building at New Edinburgh Road, Viewpark, Uddingston, with works were completed on 17th Jan 1992 and carried out in accordance with the warrant No MD/469/90 (and amendment MS/436/91 granted 2.1.92) in conformity with the relative plans and specifications and in accordance with the Building Standards (Scotland) Regulations 1982 as amended ... and I/we attach hereto a certiicate granted under Section 9(3) of the Building Scotland) Act 1959 by the person who installed the electrical installation certifying that the installation complies with the conditions on which the said warrant was granted."
52. Mr. Murray adhibited Mr. Dickie's name, as he had authority to do, and, against the words "Particulars of Agent" set out Mr. Dickie's name and professional address and his profession, "Architect".
53. Mr. Murray could not recall specifically how he came to sign this application, but stated that the client would have informed him that the work was complete and requested that the application be submitted[329]. Mr. Balmer's evidence was that Mr. Dickie, during a visit to the site, had said "We're in a state of readiness, I do believe we should apply for a completion certificate". He had no recollection of speaking to Mr. Murray[330]. Mr. Murray did not visit the site before submitting the application and took no other steps to establish whether the building had been constructed according to the Regulations or to thedrawings[331].
54. Mr. Dickie's position was that, in submitting such an application, he was acting as his client's agent. He was making no representation on his own behalf that the building had in fact been completed in accordance with the warrant. In a case where he had been instructed on a plans only basis he would make such an application on being told by his client that the works were complete without making any check of the position himself[332].
Certificate of completion
55. During the construction process, Mr. Gibb had visited the site about 20 times[333]. Following the application for a completion certificate, Mr. Gibb visited the site on 21 January[334]. A drain test was carried out on 24 January[335]. On 27 January Mr. Gibb again visited the site[336]. His diary entry records: "Checked through roof space. Ventilation and quilt outstanding" but it is unclear whether the reference to "Ventilation" related to the mechanical ventilation system or ventilation of the roofspace[337]. He made a further visit on 5 February 1992[338] and the certificate of completion was issued on that date[339].
CHAPTER 7: REGISTRATION
1. On 8 December 1991, Mr. Balmer wrote to Lanarkshire Health Board, reporting that building was nearing completion and requesting a visit of the Health Board Management Team and a registration form[340]. Representatives of the Health Board visited the Home on 16 December 1991. Among the other matters discussed were the Nursing Homes (Scotland) Act 1938 and the Nursing Homes Registration (Scotland) Regulations. The Home purchased copies of this legislation[341].
2. On 23 December 1991 the Health Board wrote to Mr. Balmer enclosing a Form of Application for Registration and listing certain documents which required to be provided. These included "Letter from Strathclyde Fire Brigade confirming satisfaction with the fire safety arrangements"[342].
3. In response to this, Mr. Balmer wrote on 29 December to the Divisional Commander, E Division Headquarters of the Fire Service, requesting a visit with a view to issuing a "Fire Safety Certificate"[343]. On 15 January 1992 Mr. Balmer met with Mr. McNeilly, the fire safety officer. Drawings were provided to Mr. McNeilly and he prepared his own drawings dealing with the fire precautions. He attended at Rosepark on 27 January 1992 to "prove" his drawings and met Mr. Balmer and Mr. Fothringham[344]. By this stage, the fire alarm system was virtually in a state of readiness[345]. Mr. McNeilly required:-
3.1. additional smoke detector heads including a detector in the laundry cupboard next to cupboard A2[346].
3.2. that all of the bedroom doors, which had been fitted with Perko chain door closers, should be fitted with overhead door closers[347].
4. The door closers were changed to meet Mr. McNeilly's requirements[348]. Mr. McNeilly explained to Mr. Balmer that this was an aspect of protecting the means of escape[349].
5. Mr. McNeilly also required that the cross-corridor firedoors which had been fitted in such a manner as to swing both ways should be changed to swing only in one direction[350]. This evidence is supported by the following.
5.1. The warranted drawings provided that the doors should swing in both directions[351].
5.2. Mr. Murphy, who fitted the doors and Mr. Fothringham of Comtec recalled the doors being doors which swung both ways[352].
5.3. Mr. McNeilly's drawing indicated that they swung in one direction only.
6. On 27 January 1992, Mr. Balmer wrote to Lanarkshire Health Board enclosing the application form for registration, intimating an intention to be completely ready for inspection on 7 February, and requesting a registration visit on that date[353]. The application form was signed by Mr. and Mrs. Balmer[354] and stated that "The nursing home will be managed and administrated by the owners, Mr. and Mrs. T.W. Balmer"[355].
7. On 4 February 1992 Mr. Balmer again met with Mr. McNeilly and requested a letter from the Fire Service to show the Health Board that the matter of the goodwill letter was being attended to[356]. On 14 February 1992 Mr. McNeilly carried out a final survey of the premises[357]. He phoned the Health Board to give verbal approval of the fire safety arrangements with promise of written approval to follow[358].
8. On 20 February 1992, the Health Board issued a certificate of registration certifying that Lanarkshire Health Board had registered Rosepark Nursing Home, proprietors Mr. T.W. Balmer and Mrs. A. Balmer, in respect of a nursing home situation at 261 New Edinburgh Road, as from 17 February. The initial registration was for 30 beds only, although it was anticipated that this would be increased to 42 beds as the nursing staff was increased[359]. The home was registered to care for the frail elderly, the elderly with mild mental impairment, the young physically disabled and terminally ill[360]. On 13th April, a further Certificate was issued registering the Home for 42 beds[361].
9. The good will letter from the Fire Service was issued on 25 February 1992 and addressed to Rosepark Nursing Home, marked for Mr. Balmer's attention[362]. The letter was in the following terms:-
"REGISTRATION ROSEPARK NURSING HOME
Following an inspection of the above premises on Friday 14th February 1993, I confirm that the standards within the premises with regard to the undernoted are considered to be of a standard acceptable to this Brigade.
1. Means of Escape in Case of Fire
2. Escape Lighting
3. Fire detection and Alarm Systems
4. Fire Fighting Equipment
5. Fire Safety Notices
Prior to occupation of the premises a suitable fire routine should be formulated and effective steps taken to ensure that both staff and residents are familiar with the procedure to be followed in the event of fire."
10. On 10 March 1992 Mr. Balmer forwarded to the Health Board inter alia a copy of the goodwill letter from the Fire Service and maintenance contracts[363].
11. There was no requirement, for the purposes of satisfying the Health Board that the Fire Service be satisfied in relation to matters of fire routine or the training of staff in the routine[364]. At the time, Mr. McNeilly would have been satisfied that there were Staff Fire Notices on the walls at the premises in the form of Pro 656[365].
CHAPTER 8: THE VENTILATION SYSTEM
General: ventilation systems and fire safety
1. A mechanical ventilation system may typically include ductwork the purpose of which is to carry air from one part of a building to another. In order to fulfil its function, the ductwork may require to penetrate barriers which are required to have a degree of fire resistance (whether compartment walls or cavity barriers). In that event, it is necessary that the system be designed and constructed in such a manner as to preserve the integrity of the structural fire precautions of the building. This would involve: (i) fire stopping (i.e. sealing any holes made in the compartment wall or cavity barrier made to allow the ductwork to penetrate it); and (ii) the installation of a damper which will, in appropriate circumstances, create a barrier within the ductwork.
Types of damper
2. There are three main types of damper: fire dampers; fire and smoke dampers and smoke control dampers[366].
2.1. A fire damper is designed to hold back flames, although it will also hold back smoke to a certain extent[367]. Experiments undertaken by the BRE showed that such a damper would, indeed, once it closed, significantly prevent the flow of smoke along a duct, but that some smoke would escape along the duct before the damper would operate[368].
2.1.1. Far the most common type of fire damper comprises a steel shutter which is held open in a frame, which is thermally activated to close in the event of a fire[369].
2.1.2. There is another type of fire damper, known as an intumescent damper. This typically contains rigid blades which do not move filled with an intumescent material which, when exposed to heat, expands to close the opening around the blades[370].
2.2. A fire and smoke damper is designed to hold back both fire and smoke. The blades of such a damper interlock together and are sealed in such a way as to provide better smoke tightness than a fire damper. Such a damper may, like a fire damper, be activated by a thermal device, or may be set up to activate in the event that the fire alarm system is activated[371].
2.3. A smoke control damper is similar to a fire and smoke damper, but does not operate automatically. It is connected to a smoke control system and designed to open or close, or indeed partially open, to control and trap the smoke or to move it out of the area, as required[372].
3. In the early 1990s the typical type of damper which would be fitted would be a thermally activated fire damper of the shutter type[373]. BS 5588-9: 1989, Code of Practice for ventilation and air conditioning ductwork, which applied at the time when Rosepark was constructed discouraged the use of intumescent dampers, because the temperature of activation was about twice that of the shutter type of damper[374]. The Code of Practice also noted that "There are positive advantages in life safety terms in actuating fire dampers by smoke detectors in addition to thermally actuated devices, particularly in buildings presenting a high or special life hazard, such as hotels, hospitals and other non-domestic buildings involving a sleeping risk"[375]. Such dampers would close immediately on the smoke detector being activated and would accordingly close more quickly than the thermally activated devices.
4. The performance of a damper depends on the way that it is mounted and supported and restrained, and how it is sealed to the adjoining structure. The traditional metal shutter fire dampers require to be rigidly restrained. The normal way of doing this is by mounting the damper in a frame with metal lugs or straps which are embedded in a masonry wall. It would have been possible to fit a damper to flexible ductwork passing through a mineral wool cavity barrier in a suspended ceiling (such as is seen in Pro 851C) but one would expect to see a heavy steel frame surrounding the damper on all four sides, with rigid hangers going up into the structural floor slab above. The frame would be fire protected to prevent excessive movement or collapse[376].
5. It is important that dampers are fitted by someone who knows what he is doing[377].
Maintenance of fire dampers
6. Fire dampers require to be maintained to make sure that the moving parts continue to work. Adequate maintenance would require periodic inspection of the dampers. Records should be kept of the maintenance. BS 5588-9:1989 recommended that fire dampers should be tested by competent persons on completion of the installation and at regular intervals not exceeding two years. Today the recommended period for a metal shutter type of fire damper would be 12 months[378].
Description of the ventilation system at Rosepark
7. Rosepark was served by an extract ventilation system[379]. In particular, corridors 3 and 4 were served by an extract ventilation system. That ventilation system comprised the following elements:
7.1. A run of circular ductwork of aluminium foil construction[380] ran within the suspended ceiling from a position in corridor 4 approximately opposite the door to room 14 along the length of corridor 4, through the partition above the corridor 3/4 firedoor, along the length of corridor 3, through the wall of the central stairwell, and terminating at a vent in the domestics' cupboard. The intended line of the ductwork was shown on the warranted drawings, in particular p. 4 of Pro 1106.
7.2. There were vents in the ceiling at various points along the length of the ductwork (both in corridor 3 and corridor 4) to allow air to be drawn from the corridors into the ductwork[381]. There was a vent in the ceiling of the central stairwell. This can be seen in Pro 332H[382]. There was also a vent in the domestics' cupboard.
7.3. There was a fan in the roofspace. This was connected by a riser to the ventilation ductwork in the suspended ceiling of corridors 3 and 4. The spur leading to the fan in the roofspace came off the corridor duct in the vicinity of room 17 (i.e. in corridor 4 but north of cupboard A2)[383]. The fan was manufactured by Vent-Axia[384]. The extract system vented to the atmosphere[385].
7.4. Each of the cupboards, A2 and the linen cupboard, was connected to the ventilation system by a spur of ductwork. The vent into the spur of ductwork from cupboard A2 is shown in Pro 912N.
8. The ductwork was almost entirely a circular flexible ductwork[386]. This was not a type of ductwork which Mr. Brodie would have recommended for more than 1 metre lengths, because the potential resistance of such ductwork could compromise the ability of the system to achieve the intended specification[387]. The ductwork was of a flimsy type which would not have the same fire resistance as the cavity barriers and compartment walls[388]. The standard of installation was extremely poor[389].
9. At the points where the ventilation ductwork passed through cavity barriers and compartment walls, the Building Regulations in force at the time of construction required, in order to maintain the fire integrity of the barrier:-
9.1. That a fire damper be fitted; and
9.2. That the penetration made in the cavity barrier or compartment wall be fire-stopped - i.e. that any gaps should be sealed with intumescent mastic to prevent the passage of fire[390].
10. The type of fire damper which would typically have been used at the time when Rosepark was constructed contained a metal shutter which would be held open by a fusible link but which would drop shut under the effect of gravity in the event that the fusible melted (which should occur at about 72 degrees Celsius). Such a damper would be contained within a metal frame which should be built into the structure of the building. Label 1316 is an example of such a damper[391]. If there were to be such a damper in place, the framework would be visible outside the ductwork[392].
11. In the context of Rosepark, this meant that there should have been a fire damper and firestopping inter alia at each of the following points:-
11.1. Where the ductwork penetrated the partition above the corridor 3/4 firewall; and
11.2. Where the ductwork penetrated the wall of the stairwell.
12. There were, in fact, no fire dampers fitted at Rosepark[393]. In, particular, there were no fire dampers at any of the cavity barriers in the suspended ceiling above corridors 3 and 4, at the partition above the corridor 3/4 firedoor, or at the wall between the central stairwell and corridor 3[394]. The penetrations where ductwork and other services passed through these barriers were not sealed[395]. It is plain from Pro 850F (which shows the partition above the corridor 3/4 firedoor) that, although there is ventilation ductwork passing through the partition, there is no fire damper at that location and that there are gaps around the duct which would allow smoke to pass through[396].
13. The quality of the workmanship in respect of the installation of the ventilation system was poor[397].
14. The deficiencies mentioned in paras. 12 and 13 above were hidden from view above the suspended ceiling, but were obvious upon inspection of the system undertaken after the fire. They would equally have been obvious had an inspection specifically of the ventilation system been undertaken at an earlier stage in the life of the building by an appropriately skilled construction professional.
CHAPTER 9: THE FIRE ALARM SYSTEM
Installation
1. Thomas Balmer engaged Comtec Systems Limited, a limited company of which Iain Fothringham was the principal[398], to install inter alia the fire alarm system and the nurse call system and to supply fire extinguishers and signage at Rosepark[399].
The original fire alarm panel
2. The fire alarm panel which was originally installed was a JSB panel of a type known as a Firedex 9000. Pro 976 and p. 4 of Pro 1515 showed examples of similar panels[400]. Label 1509 is a similar type of panel[401]. The panel which was installed was a six zone panel[402].
3. Although the basic principles of operation were the same, the layout of the indicators and controls on this panel were quite different from the layout of the indicators and controls on the panel which was in situ during the fire[403].
3.1. At the left side of the panel was a key in a keyhole. This key could be turned to three positions. In the vertical position the key would point to the word "Normal". A short turn to the right would take the key to the word "Silence" and a further turn towards the bottom right would point to the word "Evacuate". Above the position "Silence" was a red button marked "Reset".
3.2. There were no buttons equivalent to the control buttons on the fire incident panel. In order to silence the sounders one merely turned the key to the "Silence" position. In order to reset the panel, one would in addition (provided the key was in the "Silence" position) the key to "Silence". In order to reset the system, one would in addition (provided the key was at the "Silence" position) need to press the "Reset" button[404].
3.3. To the right of the key was a panel of indicator lamps. These were in two rows, a red row, containing the fire alarm indicators, and a yellow row, containing the fault indicators[405]. Below these rows were a pair of indicators, which were sounder circuit fault lights[406], and beneath that a green mains indicator and an indicator which would illuminate if the alarms were silenced[407].
3.4. To the right of the panel of indicator lamps was the zone card. One could accordingly read directly across from the indicator to the zone card to identify the zone which had activated[408]. Pro 180 was the zone card which had been in place from the first installation of the system[409]. It was completed by Mr. Fothringham[410].
Zone information
4. The zone card in the panel was the only information provided at the panel about the zoning. Mr. Fothringham did not provide a zone plan when he installed the system at Rosepark[411].
Signage
5. Comtec installed fire action signs at the premises. Pro 656 was a staff fire action notice of a sort which Comtec would have installed. The form of the notice would not have been discussed with the proprietor but would have been as required by the fire officer[412].
Handover of the system
6. Following the installation of the system Mr. Fothringham carried out a handover to the customer. This included at least Mr. Balmer, but might also have included Mrs. Balmer, Matron and staff[413]. Mr. Fothringham's ordinary practice would have been to cover the following matters.
6.1. The operation of the fire alarm panel[414], including:-
6.1.1. A demonstration of an alarm indicator and a fault indicator illuminating; and
6.1.2. The reset procedure. He would always make the point that the system should not be reset until the alarm had been investigated[415].
6.2. That cross corridor fire doors should be closed at night[416].
6.3. The requirements for a weekly test[417].
6.4. The types of fire extinguisher and their uses[418].
6.5. The signage and the location of fire exits[419].
6.6. The need to record all false alarms and advise Comtec about them[420].
7. Mr. Fothringham stated that fire procedures were not part of his briefing, but that if he were asked about it he would give an opinion[421]. He accepted that this was something he would probably have been asked about, and that this would probably have been covered by him[422]. His normal practice at the time would have been to tell the staff:-
7.1. To go to the panel and investigate what was showing on the panel.
7.2. If staff felt safe to do so, to check the area indicated on the panel.The panel indicated the general area in which a detector had been activated, and a red light on that particular detector would identify the actual detector which had been activated[423]. .
7.3. If staff established that there was no fire, they could reset the alarm.
7.4. If there was a fire the next course of action would be to contact the Fire Brigade[424].
8. Mr. Fothringham stated that at the time he would probably, even in relation to alarms during the night, have advised staff to investigate first and to make a decision based on what was found. He accepted that this was not prudent advice in relation to alarms during the night. Today he would always advise contacting the Fire Brigade immediately because of the reduced staff numbers[425].
9. Mr. Fothringham recalled Mr. McNeilly being present at the handover at Rosepark[426]. Mr. McNeilly had no such recollection.
Maintenance of the fire alarm system
10. In January 1993, Thomas Balmer, on behalf of Rosepark Nursing Home, entered into a fire year contract with Comtec Systems Limited, for maintenance inter alia of the fire alarm system[427]. A further agreement with a five year term was entered into on 1 February 1999[428]. Although this had not been formally terminated at the time of the fire, neither party regarded it as still in force at that time[429].
11. Comtec Systems Limited undertook quarterly maintenance visits of the fire alarm system until March 2003[430]. At each visit 25% of the smoke detectors were checked, so that in the course of a year each of the smoke detectors should have been checked. Amongst other checks, the door release mechanisms were also tested. At the time of the last visit in March 2003, everything was in working order[431].
12. Comtec's last attendance at Rosepark was in May 2003 to deal with a fault on the internal key pad for the door entry[432]. By this time it had become apparent to Mr. Fothringham, the principal of Comtec, that Rosepark was engaging other contractors to carry out work on systems for which Comtec was responsible, something which was incompatible with the agreement[433].
13. On 22 January 2004 Alan Balmer entered into a contract with George Muir for quarterly inspection visits at both Rosepark and Croftbank in relation to the fire alarm, emergency lighting, nurse call and CCTV systems[434].
Testing the fire alarm system
14. The fire alarm system was tested every week. In the early days of the Home Thomas Balmer had done this himself, but after Mr. Clark was taken on, Mr. Balmer asked him to take on this task[435]. When Mr. Clark carried out a test, he would go found and check that the fire doors had all automatically shut[436]. If he found that a door had not closed over properly, he would attend to this[437]. Very occasionally, there would be a problem, for example a hinge working loose, or the door catching on the flooring, which Mr. Clark would attend to. These were very rare: Mr. Clark recorded them in Pro 27[438].
Change of the fire alarm panel January 2004
15. When Croftbank Care Home was enlarged (which was in 2001), Mr. Fothringham replaced the existing panel at that Home for one with more zones. The panel which he replaced was Label 642. There was nothing wrong with the panel and he told the customer that they should hold onto it perhaps for some other project. [439]
16. In or about November 2002, Mr. Fothringham attended at Rosepark twice within a short period to deal with a problem with the control panel. The panel was bringing up a fault condition on the sounder card which produced a beeping sound. Although Mr. Fothringham was able to deal with this problem on both occasions, on the second visit he told Thomas Balmer not to forget that he had the panel from Croftbank[440]. Although Mr. Fothringham did not replace the panel at Rosepark, there would have been no reason, if the panel from Croftbank were to be fitted at Rosepark, to believe that it would not work properly, assuming of course that it was properly tested on installation[441].
17. In January 2004 Alan Balmer mentioned to George Muir that the fire alarm panel had an ongoing fault to do with the fault buzzer and that it had already been agreed that the panel would be replaced. Mr. Muir opened up the existing panel at Rosepark and created a fault. The fault light illuminated but the buzzer did not sound. The panel also looked fairly old. The natural course was to replace the panel. Alan Balmer supplied Mr. Muir with the spare panel from Croftbank House. Mr. Muir had a look at it and it seemed suitable. Mr. Muir collected the panel (Label 642) from Croftbank on 22 January, when he was there to sign the new maintenance contract. He took it to Rosepark on 27 January and fitted it in substitution for the original panel[442].
18. When he arrived at the building, Mr. Muir spoke to Thomas Balmer and told him what he was going to do[443]. Before removing the old panel, Mr. Muir checked that that the system was operational. When Mr. Muir removed the old panel, he marked the cables to the zones one to six and when he fitted the new panel he fitted the appropriate cable to the relative terminals within the new panel. He reconnected the sounder circuits and the relays for the hold-open devices for the fire doors. He had to go to Port Dundas to get a second relay so that he could connect the release device for the main entrance. He did this and returned to Rosepark the same afternoon and fitted it[444]
19. While Mr. Muir was away picking up the relay, Thomas Balmer took the zone card from the old panel, laminated it and fixed it to the wall below the panel in the location seen in Pro 334C[445]. Once Mr. Muir had completed the installation, he spoke to Matron, who was in her office, and told her he had changed the control panel and that they were going to test the fire alarm system, that the sounders would ring and the doors would close and that she should inform the relevant staff[446]. He tripped the break glass call point adjacent to the panel to test the system. The sounders operated (although only briefly), the fire doors closed and the front door unlocked. He checked the fire doors on the upper floor as far as the corner and they all closed as they should have done[447]. Ms Meaney had no recollection of any alarm test[448], but there is no good reason not to accept Mr. Muir's evidence that he did carry out such a test: Ms Meaney told the inquiry that she had been dealing with a dying lady that day[449].
20. Thomas Balmer had been involved throughout the period that Mr. Muir was there[450]. Before the test, Mr. Balmer had been chatting with Mr. Muir about the job Mr. Muir was doing. Mr. Balmer remained in the reception area while Mr. Muir carried out the tests[451]. After Mr. Muir had tested the system he showed Mr. Balmer in some detail how the new panel operated[452]. Ms Meaney was in the vicinity of the demonstration for part of the time, but, on Mr. Muir's recollection, was involved in dealing with staff[453] and on her own account, was called over as she was leaving the building[454]. Mr. Muir did not explain the operation of the panel to her and she did not participate in the discussion which he had with Mr. Balmer[455]. Mr. Balmer told Ms Meaney that there was hardly any difference between the two panels[456].
21. Mr. Balmer's view at the time was that when the new panel was fitted it did not require any new training: "a panel is a panel"[457]. He took the view that it worked in basically the same way as the previous panel, inasmuch as it was operated with a key, and, if anything, was more user friendly[458]. He did not think that the new panel would cause confusion[459]. He did not have any discussion with Matron about providing training or awareness to staff about the new panel. He did not take any steps himself to secure that staff were made aware that the fire panel had been changed[460]. So far as he knew, no training had been given to nightshift staff in relation to the panel and he did not know one way or the other whether Matron had made staff aware of the change[461].
22. Mr. Muir had not previously told Ms Meaney that the fire alarm panel was to be changed[462]. Although Ms Meaney stated that she had not known about this before that day, it is conceivable that Alan Balmer might have mentioned it to her the previous week when he told that Mr. Muir was going to do some work to lights on the foyer[463]. There is evidence that Ms Meaney was aware that the panel was going to be changed when a fire drill was held on 21 January 2004[464].
23. The job took half a day,between about 12.30 and 3.30 or 4 pm[465].
Record keeping
24. Records were kept in relation to the fire alarm system as follows:
24.1. Mr. Balmer had instructed Mr. Clark to record the weekly fire alarm tests in Pro 27, the Fire Register and he did this. Mr. Balmer also told him to carry out drills and record them in Pro 27. Mr. Clark was not instructed to keep records of other matters to do with the fire alarm system[466].
24.2. The paperwork relating to the maintenance work undertaken by Comtec was kept in a separate log, Pro 1.
The fire alarm system at the time of the fire
General
1. The fire alarm system installed at Rosepark at the time of the fire was a type L1 system, which was the appropriate type of system for these premises[467].
2. The system employed conventional technology[468]. Conventional technology employs a series of trigger devices (a combination of break glass call points and automatic detectors) which are installed in a number of radial circuits connected to a fire alarm panel and arranged in zones[469]. This type of system does not identify at the fire alarm panel the individual device which has been activated, but only the zone in which that device is located[470]. It contrasts with an addressable system, in which each individual device would be identified at the control panel when it activates[471].
3. The fire alarm system installed at Rosepark did not send an automatic signal to an alarm receiving centre[472]. Summoning the fire brigade accordingly depended on action by staff at the home.
Alarm panel
4. Label 642 was the fire alarm panel which was in place at the time of the fire[473]. It was a six zone type FFP4/6 24 volt controller[474]. The panel was located on the wall next to the main entrance to the Home and opposite the door into the Rose Lounge at the location marked "IP" on Pro 1744[475]. The fire alarm panel is shown in situ in Pro 334C[476].
5. The panel had the capacity to take six zones[477]. The zone indicator lamps were on the right side of the panel in horizontal rows. For each zone there was a fire indicator lamp and a fault indicator lamp. The fire indicator lamps for zones 1 to 4 were in horizontal rows in the upper part of the panel, and those for zones 5 and 6 in a horizontal row beneath them[478]. If a smoke detector was activated the fire alarm indicator lamp for the zone in which that detector was located would flash[479]. The word "Fire" was written above each fire indicator lamp. Beneath each fire indicator lamp was a white rectangle (which performed no function), above which was written the zone number to which the indicator lamp related[480]. Beneath each white rectangle was another lamp, which would illuminate if there was a fault condition on the particular zone[481]. The word "fault" was written beneath each of these indicators[482].
6. On the left hand side of the panel there were three features:-
6.1. At the far left there was a key in a keyhole. The key had two positions: vertical; and horizontal (to the right). Above the keyhole was the text "Normal state" and opposite the right hand position of the key was the text "Arm controls". The "controls" referred to were the four white squares immediately next to the key. If the key was in the vertical position, the controls were disarmed but the remaider of the panel would function, to show faults and alarms. If the key was turned to the right, this allowed the four control buttons to be activated.
6.2. To the right of the key were the four control buttons. These comprised a vertical row of four white squares, each of which contained a push button, with associated text:-
6.2.1. The text next to the top button was "Reset/resound/test zone lamps". If the key was in the upright position and this button was pressed, all the lamps on the panel should illuminate. This allowed a lamp test to be undertaken, which would light up all the indicators on the panel[483]. This button was also the control for resetting the panel[484].
6.2.2. The text next to the second button was "Silence alarm sounders". If the sounders were ringing, these could be silenced by turning the key to the horizontal position and pressing this button. This would not reset the panel, so the fire condition would still be indicated by the relevant fire indicator lamps.
6.2.3. The text next to the third button was "Silence fault sounder". When any of the fault or fire indicator lamps on the panel was activated, a buzzer internal to the panel was sounded. That buzzer could be silenced by pressing this button. The fire or fault alarm light would remain illuminated[485].
6.2.4. The text next to the bottom button was "Evacuate". That button could be pressed to cause the sounders throughout the building to ring even though no fire alarm condition was indicated[486].
6.3. Between these push buttons and the indicator lamps for Zone 1, there were three further indicator lights, one above the other, with associated text:-
6.3.1. The top indicator would illuminate to indicate a fault on the sounder circuits. The word "sounder" was above this indicator and the word "fault" beneath it.
6.3.2. The middle indicator would illuminate if the mains or battery supply failed. The words "Battery/power supply" were above this indicator and the word "fault" beneath it.
6.3.3. The bottom indicator would be illuminated if the power supply to the panel was on[487].
7. The basic operating instructions were set out on the lower part of the face of the panel[488]. The left hand column read as follows[489]:-
"INSTRUCTIONS
- NORMAL CONDITION. The green mains-on light is lit. The key switch is at normal.
- ALARM CONDITION. The alarm sounders operate and the red fire lights flash. Evacuate the building.
- TO SILENCE ALARM SOUNDERS. Turn the key switch to arm controls, then press the silence alarm sounders button. The lights will go steady and the fault sounder will sound. Do not press the reset/re-sound/test zone lamps button until you have identified the detector causing the alarm signal. When you have identified the cause of the alarm signal, press the reset/re-sound/test zone lamps button to re-arm the system. Pressing the button when the alarm still exists will re-sound the sounders.
- FAULT CONDITION. The fault sounder sounds and a yellow fault light comes on. Identify the fault light and check that the mains-on light is on and call the engineer."
8. The right hand column read as follows[490]:-
"- To silence the fault sounder, turn the key switch to arm controls and press the silence fault sounder button.
NB. Some fault conditions are not silenceable.
- Turning the key switch to arm controls and pressing evacuate will always operate the alarm sounders.
- To test the fault sounder and the zone lamps, turn the key switch to arm controls and press the re-set/re-sound/test zone lamps button.
- For further information please read the instruction book."
Zone card
9. Beneath the panel and to the right hand side, as shown in Pro 334C, was a card containing descriptions of the various zones. The card itself is Pro 180 and it can also be read in Pro 334G[491]. The card was laid out as follows:-
|
ZONE 7 |
|
|
ZONE 6 |
ATTIC |
|
ZONE 5 LOWER GROUND |
ROOMS FROM CORNER TO STAIRWELL |
|
ZONE 4 LOWER GROUND |
ROOMS FROM LIFT SHAFT TO CORNER |
|
ZONE 3 GROUND |
ROOMS FROM CORNER TO STAIRWELL |
|
ZONE 2 GROUND |
ROOMS FROM LIFT SHAFT TO CORNER |
|
ZONE 1 GROUND |
KITCHEN/BOILER/ENTRANCE LOUNGE/DINER + ROOMS UP TO LIFT SHAFT |
|
ZONE
|
ZONE LOCATION |
|
CHARGER ON INDICATOR SHOULD SHOW CONTINUOUSLY
|
IF AMBER FAULT INDICATOR SHOWS OR BUZZER SOUNDS CONSULT ELECTRICIAN |
10. Mr. Fothringham explained that the logic of the arrangement was that the zones were numbered from the location of the panel, with the zone closest to the fire alarm panel at the bottom of the card[492].
11. There was no diagrammatic representation of the building showing the fire zones adjacent to the fire alarm panel[493].
Detectors
12. Throughout the building there were: (a) break-glass call points; and (b) smoke detectors. Break-glass call points would require to be activated by human intervention. Smoke detectors would automatically transmit a signal to the alarm panel in the event that they were triggered.
13. All the smoke detectors were of the Series 30 type manufactured by Apollo Fire Detectors[494]. These were ionization detectors[495]. Each detector had a red LED which would illuminate if the detector had been activated[496].
14. The plans on pages 46 and 47 of Pro 1155 identify the location of the smoke detectors and the zones to which each of the smoke detectors was wired[497]. In particular, the plan on the lower part of page 47 shows the smoke detectors which were installed on the upper floor and the zones to which they were actually wired. The detectors in the area marked in blue were wired to the light on the panel which was designated zone 3, the detectors in the area marked in pink were wired to the light that was designated zone 2, and the detectors in the area marked in yellow were wired to the light that was designated zone 1[498]. The plan on the lower part of page 46 shows the smoke detectors which were installed on the lower floor and the zones to which they were actually wired[499]. Page 48 shows the location of detectors in the roofspace[500].
15. All the detectors on the upper floor in the area of the building north of the central stairwell, with the exception of the detector in room 3 were wired to the Zone 1 lamp at the alarm panel[501].
16. There were smoke detectors at the following locations on the upper floor, all of which were wired to the Zone 2 lamp at the alarm panel:-
(a) rooms 7, 16 and 17 (which were in corridor 4) at ceiling level[502];
(b) all the detectors in corridor 3 (and the rooms off corridor 3) at ceiling level[503];
(c) in the ceiling of the central stairwell just outside the lift[504];
(d) in the domestics' cupboard next to the lift[505];
(e) room 3 (which was in corridor 1)[506].
17. There were detectors at the following locations on the upper floor, all of which were wired to the Zone 3 lamp at the alarm panel:-
(a) in rooms 8, 9, 10, 11, 12, 13, 14 and 15 at ceiling level[507];
(b) in the ceiling of cupboard A2[508];
(c) in the ceiling of the linen cupboard[509];
(d) in the corridor just outside room 17 near the corridor 3/4 firedoor at ceiling level[510];
(e) in the corridor just outside the linen cupboard at ceiling level[511];
(f) in the corridor just outside room 10 at ceiling level[512];
(g) in the corridor just outside room 11 at ceiling level[513];
(h) in the south-west stairwell[514].
18. The lower floor was divided into two zones. Zone 4 comprised: the detectors to the north of the corridor fire door (with the exception of a detector at ceiing height in the corridor just to the north of that fire door); and detectors in rooms 32 and 33. It included detectors in the central stairwell, one just outside the liftshaft and the other in the lift motor room. Zone 5 comprised all the other detectors in the area to the south of the corridor firedoor and the detector at ceiling height just to the north of the firedoor), including a detector in the cupboard at the bottom of the south-west stairwell[515].
19. Zone 6 comprised the roofspace. It contained six detectors. Corresponding to each of those detectors was a remote indicator at an equivalent location on the ceiling of the floor below (the upper floor). Accordingly, if the alarm sounded, and the Zone 6 light was flashing at the alarm panel, staff could, by walking around the upper floor identify by reference to the remote indicators which of the attic alarms had been activated[516].
20. The zone descriptions on the zone card contained ambiguities:-
20.1. Neither of the descriptions of zone 1 nor zone 2 appeared to include the liftshaft[517]. Likewise the description of zone 4 was ambiguous as to whether or not it included the liftshaft[518].
20.2. Two zones (3 and 5) were described as "to stairwell". There were two stairwells in the building. Further, it was unclear from the description whether either or both of these zones did or did not include the stairwell[519].
20.3. The area on the lower floor to the north of the central stairwell (apart from the boiler room which appeared to be referred to under Zone 1) did not appear to be covered by any of the descriptions[520].
21. There were apparent discrepancies between the way that the zones were described on the zone card and the way the detectors were in fact wired. This would be liable to lead to confusion[521].
21.1. The actual boundary between Zone 2 and Zone 3 was not in fact at the corner, since Zone 3 included a detector just on the corridor 4 side of the corridor 3/4 firedoor as well as the detectors in and just outside the cupboards[522].
21.2. Room 3 was included in Zone 2 although it opened off corridor 1 and accordingly fell more naturally into the description of Zone 1[523].
21.3. The boiler room appeared to be included in the description for Zone 1 (which otherwise related to areas the upper floor), whereas it was in fact wired to Zone 4 (which related to areas on the lower floor)[524].
21.4. Zone 4 included the areas to the north of the central stairwell on the lower floor which did not appear to be included in any of the zone descriptions on the card[525].
21.5. The detectors as wired on the lower floor did not respect the "corner" as the division between Zones 4 and 5[526].
22. The layout of the card - with the "ground floor" zones in the lower part of the card - was capable of causing confusion, particularly since the boiler was referred to in a zone which was on the "ground floor"[527].
Sounders
23. Sounders were located throughout the building on two circuits connected back to the fire alarm panel[528].
Ancillary devices
24. At Rosepark circuits were connected to the fire alarm panel to operate the following ancillary devices[529]:-
24.1. Each of the firedoors, with the exception of those into the south-west stairwell, could be held open by a magnetic device. In the event of a fire alarm activation at the panel, the power to the circuit of the door magnets was de-energised, so that the doors would close[530].
24.2. In the event of a fire alarm, the main entrance door unlocked. If the sounders were silenced, the door would re-lock[531].
Silencing and resetting the system
25. In the operation of a fire alarm panel such as the one at Rosepark, there is a distinction between silencing and resetting the system. These are completely different activities[532]. If the system were to be silenced, the audible alarm would cease to sound, and the light signaling the activation of a detector in a particular zone would continue to be illuminated but would stop flashing[533]. Only if the system were to be reset, would the fire alarm indicator lamp also clear[534].
26. The sounders could be silenced by turning the key to the horizontal and pressing the "Silence alarm sounders" button. This would leave the relevant fire alarm indicator light illuminated[535] although it would stop flashing[536]. If a second detector in the same zone were then to be activated, the sounders would resound and the light would start flashing again[537]. If a detector in a second zone were then to be activated, the relevant fire alarm indicator lamp for that zone would start flashing[538]. But if there was a fire which did not reach another detector, the sounders would remain silent[539].
27. If the system were to be reset, the fire alarm indicator light would go out. If the detector or break glass call point had not been cleared of the condition which had caused the alarm, the system would merely re-engage and the sounders would re-sound[540]. However, if in the meantime, the cabling had become damaged, a fault indication would come up, and the fire alarm indicator would not re-illuminate. So, if smoke had spread into another zone where the cabling was undamaged, there would be a fire alarm indication in that zone but fault indications for the zone of origin[541].
28. Pressing the reset control would also cause a lamp test - causing all the lights on the panel to illuminate momentarily[542].
29. As a matter of good practice, the system should not be reset unless the cause had been identified and cleared[543]. It would be acceptable for staff in a care home to silence the sounders provided they were confident that the message that there was an alarm had been communicated to staff[544].
State of the system following the fire
30. When the fire alarm panel was examined following the fire, all six zone lights were found to have been activated, the mains light was illuminated and the sounder light was on[545]. Two zones had short-circuited, which would be consistent with detectors or cables in these zones having been damaged in the course of the fire or by fire-fighting activities. There was nothing else which would have indicated any malfunction at the panel[546].
31. The fire alarm system was subsequently examined in detail by Mr. Norris. Nothing was found which suggested that the system would not have been functional[547]. In particular:-
31.1. Tests undertaken following the fire indicated that the panel should have operated correctly and as intended in the event of a fire[548] and that all of the alarm lights on the panel were functional[549]. In particular, nothing in the tests which were carried out suggested that if a detector in Zone 3 were to be activated the panel would not have responded appropriately[550].
31.2. All the smoke detectors which had not been melted due to fire damage were tested and all of them were found to be operating correctly[551]. The detector inside cupboard A2 (Label 498) was melted and could not be tested[552] but it would be reasonable to infer that it, like the detectors which were tested, was working[553].
31.3. Tests on the circuits for the internal fire doors indicated that these would have operated as expected[554].
32. Zones 2 and 3 were badly fire-damaged[555]. Zones 1 and 4 were the only zones in which there was no damage to the fire alarm system cabling[556]. The cables for zones 2, 3 and 6 passed over cupboard A2. The cable for zone 2 was fire damaged at bedroom 18[557]. The cable for zone 5 was damaged between bedrooms 26 and 27 owing to the fire burning through the floor above[558]. Upon the cabling for a particular zone becoming fire damaged, a fault would have been indicated at the panel[559].
Fire fighting equipment
33. At various points throughout Rosepark, fire extinguishers were located - both water extinguishers and carbon dioxide extinguishers[560]. The locations where extinguishers were found during Mr. Norris' survey following the fire are shown on p. 52 of Pro 1155[561]. Although he found certain extinguishers to be missing from their designated locations it may be inferred that they were in position prior to the fire. On that basis, at the time of the fire, there were extinguishers inter alia at the following locations on the upper floor[562].
31.1. There was a water extinguisher in the passage to the external fire door next to the day room.
31.2. There was a water extinguisher and a carbon dioxide extinguisher in the central stairwell.
31.3. There was a water extinguisher outside the bathroom on the corridor 3 side of the corridor 3/4 firedoor.
31.4. There was a water extinguisher and a carbon dioxide extinguisher outside bedroom 14 at the south west end of corridor 4.
34. Accordingly, a member of staff going down the corridor from the foyer to attend to a fire alarm in zone 3 would be able to pick up detectors on the way to that area.
Nurse call system
35. Each resident had a buzzer by his or her bed, conveniently located on a lead, which he or she could press for attention[563]. The buzzers sounded at various places throughout the Home[564]. They could be heard by staff throughout the building[565]. There were panels at various places in the Home which identified the room number of the buzzer being sounded[566]. One such panel was outside matron's office[567].
36. In addition, in four rooms, there was a movement detection system, linked to the nurse call system, which was designed to warn staff if the residents of those rooms moved from their beds. Two of these were upstairs and two downstairs (one in room 28). These had been installed by George Muir in December 2003 and January 2004[568].
CHAPTER 10: THE WASHING MACHINES
General
1. At the time of the fire, there were three washing machines side by side in the laundry. These may be seen in Pro 885G[569].The left hand machine was a white top-loading machine[570]. The middle machine, yellow in colour, was a Nyborg Minett unit ("the Minett"). The right hand machine, red in colour, was a Nyborg 903 ("the 903")[571]. For present purposes, it is only the Minett and the 903 which require to be considered further.
2. The 903 and the Minett were supplied with electrical power from separate switches, which were mounted side by side on the side wall of a ventilation shaft which ran vertically from the floor to the ceiling within the laundry[572]. These switches may be seen in Pro 885H[573] and, in close up, in Pro 857A. These switches were supplied with power from the distribution board in cupboard A2 through a cable, designated Cable V[574].
3. When the Home opened there were only two washing machines - a top loader and a sluice machine on a plinth - in the general location of the washing machines shown in photograph 885G[575]. The Minett was installed by Duncan McRae, a washing machine engineer with William Wilkie & Company Ltd, in December 1996 as a replacement for another machine[576]. The 903 was acquired secondhand by Thomas Balmer as an additional machine[577]. The 903 was in place by August 1998, when Mr. McRae carried out a repair on the 903[578].
4. Following the installation of the 903, Mr. McRae was called out to re-bolt it to the plinth[579]. The electrical and plumbing installation had already been carried out when Mr. McRae attended to carry out this work. Mr. McRae had to disconnect the drain, but not the electrical connection[580]. Mr. McRae noticed that there was now a second switch - namely, the left hand switch seen in Pro 857A[581]. He noticed that the two switches were connected together to the one supply and that the 903 was supplied by a fixed twin and earth cable[582]. The reasonable inference is that this switch was installed for the purposes of the 903.
5. Mr. McRae took the view that the rating of the electrical supply was insufficient for both machines - so that, if both machines were connected on full power, it would trip the breaker[583]. Mr. McRae accordingly disconnected one of the heating elements on the Minett in order to bring the current down under 32 amps[584]. He raised the question of the adequacy of the electrical supply with Joe Clark. He told him that he had derated the machine and that he should have the matter checked by an electrician[585]. Mr. Clark said it was possible that Mr. McRae had said such a thing to him, but that if he did, he would pass it on to Mr. Balmer[586]. This rang no bells with Mr. Balmer[587].
6. Mr. McRae subsequently visited Rosepark on a number of occasions to carry out various pieces of work in relation to equipment in the laundry. He undertook a repair to the 903 in August 1998, a repair on the Minett in November 1998, a repair to another machine in September 1999. He was also called out to carry out repairs on a casual basis[588]. He did not again raise any concern about the electrical power supply and its adequacy. He assumed that this would have been attended to[589].
Washing machine settings
7. Each washing machine could be run at a number of different temperatures.
7.1. The Minett had normal settings at 30 degrees, 40 degrees, 60 degrees and 95 degrees, a wool setting which ran at about 30-40 degrees, and a permanent press setting[590]. The 30 degree setting drew in cold water only. For the other settings, the machine drew in a mixture of hot and cold water at 35 degrees, which was then heated within the machine to the appropriate temperature for the setting[591].
7.2. The 903 had normal settings at 30 degrees, 40 degrees, 60 degrees and 95 degrees, a wool setting at 40 degrees and permanent press settings at 40, 60 and 95 degrees. This machine drew in cold water only, which was then heated within the machine to the appropriate temperature for the setting[592].
8. The Minett washing machine had two heating elements. At the time of the fire one of the heating elements had an open circuit fault on it and would accordingly neither draw current nor contribute to heating the water in the machine[593]. The 903 had a single heating element. During any particular wash cycle, the heating element would go on as required in order to heat water to the set temperature[594].
9. The two main electrical loads in each washing machine were: (a) the motor which rotated the drum; and (b) the heating elements. The current drawn by the heating elements was significantly greater than the current drawn by the motor[595]. When the working heating element of the Minett was on, the machine drew a constant current of about 9.5 amps, with a peak value, including the motor current, of 10.3 amps[596]. If both heating elements of the Minett were working, the machine would have drawn a constant current with a peak value of 19.8 amps[597]. When the heating element of the 903 was on, the machine drew a constant current of about 19 amps with a peak value, including the motor current, of 20.8 amps[598].
10. The length of the period during which the heating element would be on in any cycle would depend on the setting of the machine.
10.1. The 903.
10.1.1. On the 40 degree setting (and with only cold water being drawn into the machine), the heating element of the 903 would come on about 8 minutes into the wash cycle for 3.8 minutes, would then go off, and would come on again about 20 minutes into the wash cycle for 7.94 minutes[599].
10.1.2. On the 60 degree setting, the heating element of the 903 would require to be on for some 16 minutes in all, if only cold water were drawn into the system, and for some 10 minutes in all if a mixture of hot and cold water were drawn into the system[600].
10.1.3. On the 95 degree setting the heating element of the 903 would require to be on for some 27 minutes in all if only cold water were drawn into the machine, and for some 20 minutes in all if a mixture of hot and cold water were drawn into the system[601].
10.1.4. On the 30 degree setting, and assuming that only cold water was drawn into the machine, the heating element would require to be on for a shorter period than for the 40 degree setting[602].
10.2. The Minett
10.2.1. On the 40 degree setting, and assuming that only cold water was drawn into the machine, with the single heating element which was in operation at the time of the fire working, that heating element would come on some 3 minutes into the cycle, remain on for some 14.6 minutes, and then switch off for the remainder of the cycle[603].
10.2.2. On the 60 degree setting, with the single heating element which was in operation at the time of the fire working, that heating element would be on for some 34 minutes if only cold water was drawn into the machine, and for some 20 minutes, if both hot and cold water were drawn into the machine[604].
10.2.3. On the 90 degree setting, with the single heating element which was in operation at the time of the fire working, that heating element would be on for some 53 minutes if only cold water was drawn into the machine, and for some 40 minutes if both hot and cold water were drawn into the machine[605].
10.2.4. If both heating elements were working, these times would be half as long[606].
10.3. These various times could vary depending on the starting temperature of the feeds and, if both hot and cold water were drawn into the machine, the relative rates of the two feeds[607].
11. When the heating elements of both machines happened to be on at the same time, the current drawn through Cable V would be the sum of the currents drawn by each machine when its heating element was on. During any period when the heating elements of both machines happened to be on at the same time, the total current drawn by the two machines would accordingly have had a peak value, when only one of the Minett's heating elements was working, of 31.1 amps[608], and if both of the Minett's heating elements were working, of 40.6 amps[609].
The use of the washing machines
12. The nature and duration of the use of these washing machines (or indeed the machines which they replaced) over the lifetime of the Home cannot be assessed with any precision. A finding, however, that the machines were in frequent use, on a variety of settings, would, however be justified. There was evidence that, in the period before the fire, the bulk of the laundry was done daily between 7 am and 3.30 pm and: (a) that during that shift both the 903 and the Minett would typically be in virtually constant use[610]; (b) that the 903 would typically be run on the 40 degree setting, although the 60 degree setting was also used; and (c) the Minett would typically be run on the 50 degree setting, although from time to time the 60 or 95 degree setting would be used[611]. There was also evidence that laundry was also routinely done on the backshift[612]. At that time, a load of dishtowels would usually be done in the Minett, and a mixture of sheets and towels might also be done in the 903[613]. There was evidence of both 40 and 60 degree settings being used[614].
CHAPTER 11: THE ELECTRICAL INSTALLATION
General considerations
1. In a typical electrical installation, electrical power is supplied to premises through a fused cut-out and a meter before reaching a consumer unit or distribution board. From the distribution board power is supplied through individual circuits to the various locations and appliances where power is required within the premises. When the circuit is complete, current flows around the circuit to the point of load in the live wire, which is energized at 230 volts. From the point of load, the current flows back down the neutral wire, which is typically at about zero volts, to the point of supply[615]. The live and neutral wires are, in fact, both contained within a single cable, normally sheathed in PVC[616].
2. For electrical current to flow, there must be a closed circuit. If the circuit is interrupted, current will not flow. A switch is a means of interrupting a circuit. If a switch is opened, the live wire on the supply side of the switch will still be energized at 230 volts, and everything on the output side of the switch will be at zero volts, but there will be flow of current. If the switch is closed, the current will flow round the circuit[617].
3. A cable will only carry a certain amount of current before it heats up to the point at which it might be damaged. Cables are accordingly rated at a maximum current carrying capacity[618]. The current carrying capacity of a cable is determined predominantly by the type of conductor, the cross-sectional area of the conductor, the type of insulation covering the conductors and the location of the cable[619].
4. Any circuit should also be protected by a fuse or circuit breaker, which is designed to protect the cable from over-current. A circuit breaker is rated at a particular value of current. When the current flowing through the circuit breaker exceeds the rated value, the circuit breaker will trip to the off position, interrupting the circuit. The speed with which a circuit breaker trips depends on the magnitude of the current flowing through it in excess of its rated value[620]. For example, a 50 amp circuit breaker exposed to a current of 51 amps would take days to trip. Exposed to 60 amps it would take hours to trip. Exposed to 200 amps it would take around 5 seconds to trip[621].
5. The purpose of a circuit breaker is to protect the circuit from excess flow of current where that can lead to danger. Typically, the rating of the circuit breaker will be set below the maximum current carrying capacity of the cable. If the circuit breaker were to be rated higher than the cable, one could have a current flowing through the cable which would expose the cable to excessive heat but which did not trip the circuit breaker. Equally, however, one would not choose a circuit breaker rated at a value less than the current drawn by the load because the circuit breaker would keep tripping when the appliance supplied by the circuit was in use[622].
6. For safety reasons, metal equipment should be connected to earth. The function of the earth connection is to ensure that under fault conditions, exposed metalwork does not become live at a hazardous voltage. If, for example, a live wire should come into contact with the exposed metalwork (an "earth fault"), the current should flow through the earth wire as well as the neutral wire, to form an earth fault circuit. The electrical resistance in this circuit should be very low, so that, in the event of an earth fault, a current well in excess of the rated value of the circuit breaker will be drawn through the circuit, causing the circuit breaker to trip extremely quickly[623].
7. It follows that, in earth fault conditions: (a) current flow from the live wire into the earth wire through the metalwork of the appliance at the location of the fault; and (b) the current drawn through the circuit will increase dramatically[624].
Electrical distribution systems as potential sources of ignition
8. Electrical distribution systems are capable of causing fire[625]. According to Mr. Mortimore, many fires are started by electrical faults, although the percentage of such faults which lead to fires is very low[626].
9. The following mechanisms whereby a fire may be caused by an electrical distribution system were identified by Mr. Madden:-
9.1. If a conductor, such as the wires in a cable, carries excessive current, the current may heat the conductor to the extent that the insulation melts and creates the conditions for fire. The excess current can be caused by faults in the circuit, such as short circuit or earth faults, or by overload. Overload could be caused, for example, by an electric motor stalling, or because the number and nature of the appliances drawing current through that conductor is excessive[627]. Electric cables are rated according to their current carrying capacity: the amount which the cable can carry without overheating.
9.2. Hotspots in electrical systems can be created by, for example, loose or poorly made joints and by contaminated or dirty contacts and devices such as circuit breakers and switches. These introduce electrical resistance in the circuits that will generate heat when current is passed. The surfaces of materials may become hot enough to cause ignition of combustible materials and consequential fire[628].
9.3. Insulation failure on cables and components can cause current to flow between a live conductor and a conductor that is either a neutral conductor or one that is earthed, or between live conductors at different voltages. This can give rise to fire in two ways: (1) it can create localized heating which may lead to fire; and (2) it can lead to the generation of an arc.
10. Arcing is the flow of electricity through air[629]. Air is normally a good insulator. However, in certain circumstances the molecules in the air may become ionized to the extent that current can flow[630]. In particular, an arc may be generated if an earth fault occurs, generating significant current flow. Although any circuit breaker protecting the circuit in question should trip in response to such an overcurrent, this may not occur quickly enough to prevent an arc occurring[631]. An arc will generate heat, typically of the order of 2000 degrees or so[632]. Some of the material of the conductors will vaporize. In addition, molten globules of metal ("spatter") may be expelled violently from the point at which the arcing occurs[633]. These molten globules will have the visual appearance of sparks[634]. The temperatures generated by the arc may ignite combustible materials in the vicinity[635]. If the spatter has sufficient energy and falls on a suitable combustible material, a fire may be started where the globules fall. Equally, if the sparks pass through a combustible gas in air mixture, they may ignite that mixture[636].
Minimising the risk
11. In the ordinary design and installation of electrical systems, steps should be taken to minimize these risks. These steps include the following:-
11.1. Anyone designing an electrical installation should identify the amount of current which is going to be drawn by the load on a particular circuit, and select a cable of the correct rating to carry that current safely[637].
11.2. Cables should be protected by an over-current device such as a fuse or circuit breaker which will operate to interrupt the current when it reaches at a particular value. The fuse or circuit breaker should be rated to operate at a current lower than the current carrying capacity of the cable but higher than the load current drawn by the equipment served by the cable (to avoid constant tripping of the fuse or circuit breaker)[638].
11.3. Conductors, particularly live conductors, should be insulated in a manner suitable to the environment in which they are being used[639].
11.4. Electrical installations should be routinely inspected and tested: (a) in order to detect deterioration which might lead to fire[640]; and (b) to make sure that the earth connections are sound and that the earth circuits are of very low resistance[641].
12. Detailed recommendations in relation to these matters are set out the IEE Wiring Regulations, now incorporated in British Standard 7671[642]. These have no formal statutory force. However, compliance with this Standard is regarded by the Health and Safety Executive as a means whereby duty-holders may comply with their statutory responsiblities under the Electricity at Work Regulations[643].
13. The edition of the IEE Wiring Regulations applicable at the time of construction of Rosepark was the 15th edition, 1981, incorporating amendments up to and including June 1987[644]. These were superseded by the 16th edition, issued on 10 May 1991, with effect from 1 January 1993[645]. Amendments were made to this as follows: Amendment 1 (with effect from 1 July 1995); Amendment 2 (with effect from 1 July 1998); and Amendment 3 (with effect from 1 January 2002). The 16th edition was superseded by BS 7671: 2001 which was issued on 1 June 2001, and came into effect on 1 January 2002. The 2001 Standard was amended by Amendment 1 which came into effect on 1 February 2002, and was in force in that form at the time of the fire[646].
The electrical distribution system at Rosepark at the time of the fire
Mains supply and its distribution throughout the building
14. Rosepark Care Home had a three phase 400 volt electricity supply with combined neutral and earth. This was supplied to the Home through a 100 amp three phase fused cut-out belonging to Scottish Power. Power was distributed through the power company's meter to a MEM fuse board located in the electrical cupboard in the foyer of the Home[647]. The electrical cupboard is shown in Pro 334D. From the fuse board, the electrical supply was distributed at 230 volts to the lift and to three distribution boards. One of the distribution boards was located in the electrical cupboard in the foyer and is shown on Pro 334K. Another was located in cupboard A2 on the upper floor[648] and is shown in Pro 873A. The third was located in the equivalent cupboard on the lower floor and is shown in Pro 880A. There were fuses for the supply to the distribution boards and the lift at the fuse board in the electrical cupboard[649].
The distribution board in cupboard A2
15. The electrical distribution board in cupboard A2 was a Memera 2000 type, manufactured by MEM[650]. Pro 873A is a photograph of the board in situ. Pro 1024E is an external photograph of a MEM distribution board of the same type. Pro 1024A is a photograph of the same distribution board wired up generally in the same fashion as the distribution board which was in cupboard A2[651].
16. The distribution board (Label 1493) was a pressed metal box[652] 292 mm wide by 366 mm high by 84 mm deep[653]. It had a sheet steel front cover (Label 1494) which was held in place by four captive screws[654]. The metal was covered with a cream coloured powder coating[655].
17. In situ, the board was mounted on a backboard attached to the plasterboard wall of the cupboard[656]. The mounting points protruded slightly, creating a small gap of one to two millimeters between the back of the distribution board and the plywood board upon which it was mounted[657].
18. The internal layout of the distribution board is shown in Fig 4 of Pro 1278[658]. The way in which the distribution board fulfilled its function can be understood by reference to that Figure and to Pro 1024A.
18.1. The mains power supply to the distribution board came via a cable which ran down the internal left hand wall of the cupboard to enter the distribution board at the top[659]. Within this cable were two circuit conductors, a live one (red) and a neutral one (blue). Each of these conductors was connected to an isolator switch on the right hand side of the upper busbar (i.e. the upper of the two busbars mentioned in paragraph 18.2.1 below) within the distribution board[660].
18.2. Within the board were the following components:
18.2.1. Two horizontal copper busbars, one above the other. Each busbar looked rather like a comb with teeth so that miniature circuit breaker ("MCBs") could be clamped onto it[661].
18.2.2. A horizontal brass neutral bar, in the top part of the distribution board.
18.2.3. There were two vertical brass earth bars, one on each side of the distribution board[662].
18.3. Power was supplied to the two busbars from the live isolator switch[663]. The neutral isolator switch was connected to the neutral bar.
18.4. From the distribution board, power was supplied to appliances, lighting circuits, etc, through outgoing cables. Each outgoing cable had three cores: a live core (red); a neutral core (black); and an earth core[664]. It was standard practice for lighting circuits to be served from the upper busbar; and power circuits from the lower busbar[665].
18.5. The live core for each outgoing cable was clamped to the upper terminal of one of the MCBs. The neutral core for each outgoing cable was clamped to the neutral bar[666].
18.6. The earth core from each outgoing cable was connected to the earth bar. An earth connection was made onto the casing of the distribution board itself through a gland at the top of the board[667].
19. There were seven MCBs on the upper busbar and a spare "way" or unused space on that busbar. There were ten MCBs and another spare "way" on the lower busbar[668]. The unused "ways" should have been covered by blanking plates. Evidence of residue consistent with a blanking plate being present at the top row of MCBs was found[669]. There was no residue of plastics from the blanking plates which should have been fitted in the lower row of circuit breakers. Although it is possible that these could have been consumed in the fire[670] the absence of any residue would be consistent with there having been no blanking plate on the lower busbar[671].
20. The MCBs in the distribution board in cupboard A2 were magnetic thermal overload circuit breakers. These incorporated two elements: a thermal element; and a magnetic element. The thermal element was a bimetallic strip, i.e. two pieces of metal of different type connected together. If the strip were to be heated, one of the metals would expand more rapidly than the other, operating a switch to trip the MCB. The magnetic element had a coil of wire. If current were to pass through the wire it would generate a magnetic field. This too would operate a switch. The MCB could be set to trip, by this mechanism, at a particular overload current[672]. In the event of an overload, the circuit would be broken by pulling apart two contacts inside the MCB. As the contacts pull apart, the current tries to continue to pass across the contacts, creating an arc within the circuit breaker. This is a normal part of breaking the circuit which, within limits, a circuit breaker is designed to accommodate[673].
21. All of the MCBs on the upper busbar were manufactured by MEM and were rated at 6 amps. It is likely that these fed lighting circuits and the controller for the extract fan[674]. All of the MCBs on the lower busbar, apart from circuit breaker 10, were also manufactured by MEM. The first four from the left were rated at 16 amps. The next four supplied the ring main circuits and were rated at 32 amps. The circuit breaker in position 9 was rated at 32 amps but had no wires connected to its outgoing terminal[675].
22. Circuit breaker 10 on the lower busbar (Label 323) was of a type known as a Merlin Gerin circuit breaker, manufactured by Schneider[676]. The Court may conclude, for the following reasons, that it was rated at 50 amps and had been manufactured in or after August 1993:
22.1. The Label itself was identified by M. Ribas, of Schneider, as being a Merlin Gerin circuit breaker, rated at either 45 or 50 amps, manufactured at Schneider's Ajax plant[677].
22.2. Schneider's Ajax plant first came into operation in August 1993 and closed in or about 2002[678].
22.3. 45 amp is an unusual current rating for the United Kingdom. Schneider have never marketed at 45 amp circuit breaker in the United Kingdom[679]
23. Circuit breaker 10 had been fitted upside down, in order to allow the distribution board cover to fit over it[680].
24. Photograph 54 (p. 178) of Pro 1454 shows Label 323, following the incident, after one side had been removed. The two terminals of the circuit breaker are at the top and bottom. Immediately beneath the top terminal is the thermal device, connected by a braided copper wire to the contact mechanism. The moving arm of the contact is held on a circular pivot point about a quarter to a third of the way from the top of the device and sitting at an angle of 20 degrees to the horizontal. Immediately beneath the moving arm of the contact mechanism is the fixed contact. Beneath the moving arm of the contact mechanism is a coil of wire, which is the magnetic trip mechanism. To its left, in the bottom part of the MCB is a box-like grid structure. This is an arcing chamber which is meant to suppress the arc which will occur as a matter of course when the circuit breaker trips[681].
25. Each busbar should have had a plastic cover which would have been fitted after the circuit breakers and internal wires had been installed[682]. Following the fire residues were found consistent with each busbar having had a plastic cover and it may accordingly be concluded that both covers were in place before the fire[683].
26. Prior to installation, the distribution board would have been supplied with its surfaces intact, but with semi-pierced indentations for cable entry holes which could be knocked out by the installing electrician as required. In this case, one hole had been knocked out of the top plate for the supply cables, two holes in the bottom plates for the connections to the RCDs and three holes in the back plate for the outgoing cables[684]. The paint would not have been continuous over the edge where the metal had been knocked out. There was accordingly a bare metal edge. The edge of a cable knockout tends to be quite sharp[685] - though how sharp would depend how clean the punch was[686] - and may include burrs where the metal which has been knocked out would have been attached to the rest of the board[687].
27. There were two rectangular slots in the metal front cover of the distribution box[688]. These corresponded to the two busbars and allowed access to the isolator switches and the MCBs without removing the front metal cover. As shown in Pro 1024E, a MEM distribution board should have a plastic hinged cover over each of these slots. Mr. Balmer was "almost certain" that these were in place, on the basis that in walking round the Home he checked in cupboards and if he had noticed them missing he would have raised this[689]. However, following the fire no trace was found of these external plastic covers. Although there was a possibility that these covers could, depending on the severity of the fire, have been consumed without trace, if the covers had been in place, one would have expected the four retaining screws to have been found inside the board following the fire. In the fullscale cupboard test undertaken by the HSL, which was undertaken with the covers in place, such screws were found[690]. By contrast, no retaining screws were found in the incident board and one may accordingly conclude that the plastic covers were not in fact in situ before the fire[691].
28. Beneath the distribution board were two residual current devices. A residual current device is a type of circuit breaker designed specifically to detect earth fault current or insulation failures to earth and to trip extremely quickly. The residual current devices protected the circuits served by the MCBs at positions 3 and 4 on the lower. The cables to the RCDS from those positions passed through a knockout in the base of the distribution board[692].
29. To the left of the distribution board (i.e. closer to the front of the cupboard) was a ventilation controller, which controlled the fan for the ventilation system. This ventilation controller received its power supply from the upper busbar of the distribution board[693].
30. Above the distribution board was a fused spur unit for the emergency lighting circuit[694].
Power supply to the washing machines
31. The two switches on the wall of the laundry which served the Minett and the 903 (seen in Pro 857A)[695] were supplied with power from the distribution board in cupboard A2.
31.1. Power was supplied to the right hand switch from the distribution board in cupboard A2. The cable which took power from the distribution board to that switch was designated during the investigation as "Cable V"[696]. It was protect by the Merlin Gerin MCB. A flexible cord of about 2.5 mm cross-sectional area led from the right hand switch and was wired into the Minett[697].
31.2. The left hand switch was supplied with power from the right hand switch via a small length of grey 6 mm2 twin and earth cable, looped from one switch to the other. Similar cable led from that switch and was wired into the 903 washing machine[698].
Cable V
The cable
32. Cable V, the cable which supplied power to the 903 and the Minett, was a flat twin and earth cable[699], 6 mm2 in cross-sectional area[700]. It had three cores, live, neutral and earth. The live and neutral cores each comprised seven strands of copper. The live core was insulated with red PVC insulation. The neutral core was insulated with black PVC insulation. The earth core was not separately insulated. A grey PVC oversheath enclosed the three cores[701]. The cable was rated to operate continuously at 70 degrees Centigrade[702].
The route of Cable V
33. Cable V carried power from the distribution board in cupboard A2 to the right hand isolator switch on the wall of the laundry. It received its power through circuit breaker 10 on the lower busbar - the Merlin Gerin circuit breaker. The route of Cable V from the distribution board in cupboard A2 to the right hand isolator switch on the wall of the laundry was as follows:-
33.1. Through the upper righthand knockout on the back of the distribution board.
33.2. Through holes in the backboard and the plasterboard wall of the cupboard into the void between cupboards A2 and A1[703].
33.3. Up through the void between the two cupboards, and through the ceiling of the void, into the roof space. The void between the two cupboards was full of glass fibre insulation[704].
33.4. Across the roof space above the ceilings of rooms and corridors between the point where the cable entered the roofspace and a ventilation pipe directly above the laundry[705]. In the roofspace, the cable was clipped to the rafters at certain points along its course[706] but otherwise simply lay on top of the glass fibre insulation and rafters.
33.5. Into that ventilation pipe through a hole which had been cut in it to allow the cable to enter the pipe and then sealed with tape. The ventilation pipe can be seen in Pro 858K[707]. Pro 857N shows the ventilation pipe in the roofspace with Cable V entering it[708]. Pro 857P shows the pipe with the sticky tape removed[709]
33.6. Down the ventilation pipe to the location of the right hand isolator switch which was mounted on the side of the ventilation shaft for the pipe[710]. The switches can be seen in Pro 857A.
History of the electrical connections to the washing machines
Cable V
34. Cable V and the right hand wall mounted switch (which served the Minett) were added after the first fix phase of the construction work had been completed[711] but, it may reasonably be inferred for the following reasons, before the Home was opened.
34.1. Cable V was of a different manufacture from the other cables that had been installed as part of the first fix[712]. One may therefore infer that it was not part of the first fix.
34.2. The circuits on the lower floor were, with the exception of the switches served by Cable V, served by the distribution board in the cupboard on the lower floor[713]. In particular, the other circuits for the laundry were served from that distribution board[714].
34.3. In the ordinary course of construction, cable runs are installed as a "first fix", before the plasterboard was fitted and decoration undertaken. This was the way the rest of the cabling at Rosepark appeared to have been fitted[715].
34.4. All the other outlets in the laundry were flush mounted. Only the two switches on the ventilation shaft were wall mounted[716]. One may infer that they were installed at a different time from the other outlets.
34.5. There was no indication on the warranted drawing of a switch at that location[717]. One may accordingly infer that the installation of a switch at that location was an afterthought.
34.6. If the switches in the laundry were fitted at a late stage, as an afterthought, after the decoration had been completed, the easiest and least disruptive way to get power to it, without disturbing the decoration, would have been to run the cable up the ventilation duct, across the roofspace, and down to the distribution board on the upper floor[718].
34.7. When the handover of the Home from the subcontractors to Mr. Balmer took place, there was no equipment in the laundry and the switch and associated cabling were not there at that time[719]. One may accordingly infer that the switch was installed after that time.
34.8. On the other hand, the righthand wall-mounted switch was in place before the Home was opened[720]. One may accordingly infer that the installation of this switch (and the associated cabling) occurred very late in the day, shortly before the Home opened.
35. Mr. Ross accepted that he would probably have been involved in the electrical installation in the laundry at the time of the original work[721]. But he did not recall himself being called in to make a late addition of this sort[722]. On the basis of the foregoing considerations, it is likely that the cable would have been installed when the washing machines were brought into the laundry. The person responsible for installing it cannot be identified.
Additional switch for a second washing machine
36. For the following reasons, it may be concluded that the left hand wall mounted switch (serving the Nyborg 903 washing machined ("the 903")) was a later addition, added when the 903 was installed[723].
36.1. The way that the two switches are connected together suggests that the left hand switch was added at a later date[724].
36.2. When the Minett was installed in December 1996 there was only one switch on the side of the ventilation shaft - namely, the right hand one[725].
36.3. The 903 was an additional machine, i.e. additional to the machines which were previously in place[726].
36.4. The second switch was there when Mr. McRae was called to re-instal the 903[727].
37. If it is necessary to draw any conclusions as to responsibility for this work, it may be concluded that it was probably carried out by Alexander Ross.
37.1. He was the electrician used to do general electrical work at Rosepark over the relevant period[728].
37.2. Mr. Muir did no electrical work in the laundry prior to the fire. He was unaware that there was a distribution board in cupboard A2. He had nothing to do with the electrical power supply for the washing machines in the laundry[729].
37.3. Mr. Ross accepted that this was the sort of job he could have done[730]
37.4. Mr. Clark thought it would have been Mr. Ross who fitted the box. Although his evidence on this whole question was confused and unsatisfactory[731] that conclusion is consistent with the inference which could reasonably be drawn from the evidence that Mr. Ross was the electrician employed to do general electrical work at Rosepark over the relevant period.
Merlin Gerin circuit breaker
38. The Merlin Gerin circuit breaker[732] was (assuming that the Court finds that it was a 50 amp circuit breaker manufactured after August 1993) installed in or after August 1993[733]. It was accordingly not part of the original installation. There would have been a rational reason to install a circuit breaker with the rating of the Merlin Gerin at the same time as or after the installation of the second switch, since the current drawn by the two machines would have been liable to cause a circuit breaker rated below the rating of Cable V to trip[734] and this would explain the selection of a higher rated circuit breaker. Mr. Clark gave some evidence to the effect that the fuse was upgraded to accommodate the increased load when the second machine was added[735]. Alexander Ross however claimed that he did not install this circuit breaker[736]. Standing his evidence it cannot be concluded that he installed this circuit breaker.
39. Mr. Balmer claimed to recollect a discussion with Mr. Harvie in which Mr. Harvie, referring to the washing machine circuit stated that he would easily recognise it "because it's a heavier breaker and it switches in the opposite direction to the others"[737]. Given the evidence about the date of manufacture of the Merlin Gerin circuit breaker, this evidence (if it is accepted) cannot in fact relate to the Merlin Gerin circuit breaker.
[The text commenting on the quality of the workmanship exhibited by the electrical installation formerly at this location has been moved to the end of this Chapter. In that section, para. 56 (formerly para. 44) has been adjusted]
The state of the electrical installation following the fire
The fuse for the distribution board in cupboard A2
40. Following the fire the fuse in the main electrical cupboard in the foyer which served the distribution board in cupboard A2 was found to have blown[738].
The distribution board
41. The distribution board from cupboard A2 and its contents had suffered a significant amount of fire damage. The damage to the carcase of the board itself was manifested as charring and loss of coating from both sides of the case both inside and outside and also charring and bubbling of the paint around the edges of the back plat of the case, both inside and outside. The heat distribution across the back plate appeared to have been relatively symmetrical at any given height above the bottom edge, with the greatest affected areas being at the sides of the box. The heating effect lessened towards the centre of the case both internally and externally. There was some evidence that the left side of the distribution board had been heated to a greater extent than the right side[739].
The MCBs
42. All of the MCBs in the distribution board were found, on testing following the fire, and on radiographic examination of the MCBs, to be off[740]. In the context of a fire a MCB of the sort found in this distribution board might have been caused to trip either by the thermal or by the magnetic mechanism.
(a) Thermal mechanism. As the breaker heats up, the thermal element responds and, if the rise in temperature becomes excessive, as normally it would in a prolonged fire, this would trip the breaker[741].
(b) Magnetic mechanism. If the circuit is live at the start of the fire and the fire burns through the cable on the outlet side of the circuit breaker, the conductors may short together, giving a high current which would be detected by the magnetic element and trip the breaker[742].
The Merlin Gerin circuit breaker
43. Circuit breaker 10 (the Merlin Gerin circuit breaker)[743] exhibited, on visual examination, markedly more damage than any of the other circuit breakers[744].
44. On internal examination, it was found that the circuit breaker had, at some time, operated under duress[745].
Evidence of arcing
45. Evidence of arcing was found at two locations within the distribution box in cupboard A2.
45.1. Two earth cores which were routed in close proximity to the upper busbar were discontinuous. A piece was missing from the busbar itself[746]. This was consistent with electrical arcing activity[747]. That the damage to the busbar was indeed a consequence of arcing was confirmed by metallurgical analysis[748]. The damage to the busbar is shown in Photograph 28 (p. 152) of Pro 1454[749], and the two earth cores in Photograph 31 (p. 155) of Pro 1454[750].
45.2. Two of the wires forming the live core of Cable V were broken at the point where the cable passed through the carcass of the distribution board. There was also a small notch in the steelwork at the knockout, adjacent to the discontinuity in the two cores of the cable[751]. This was consistent with the effects of electrical arcing activity between the cable and the steel of the distribution board[752]. That the damage at the knockout was indeed a consequence of arcing was confirmed by metallurgical analysis[753]. Pro 875A is a photograph showing the inside of the distribution board in which the discontinuity in the two cores of Cable V can be seen[754]. Photograph 33 (p. 157) of Pro 1454 is a photograph looking from the other side of the board annotated to show the discontinuous strands of the live core and the signs of electrical arcing activity at the edge of the knockout[755]. The approximate location of the evidence of arcing is shown in Figure 4 of Pro 1278[756]. The evidence of arcing activity at Cable V would be expected to cause the associated circuit breaker to trip very quickly - in other words, to operate under duress[757].
Absence of grommets on the knockouts of the distribution board in cupboard A2
46. For the following reasons, it may be concluded that none of the knockouts of the distribution board in cupboard A2 was protected by a grommet.
46.1. Following the fire, there was no evidence found that a grommet had been fitted to any of the knockouts of the distribution board in cupboard A2[758].
46.2. In particular there was no evidence - in the form of charred residue or a protection pattern - that a grommet had been in place round the upper right knockout (through which Cable V passed) [759].
46.3. Even PVC (which is not easily burned) can burn to utter destruction leaving no residue given enough time, heat and air[760]. It is unlikely, however that this is the explanation for the absence of any evidence of a grommet at Cable V for the following reasons:-
46.3.1. The back of the distribution board was not - by reason of the numerous surfaces which would tend to reduce the temperature - an ideal location to burn a grommet to utter destruction such that no residue would be left[761].
46.3.2. If a grommet were to have been present and burned to utter destruction, it would still have left a protection mark[762].
46.3.3. Other insulation had survived in the area such that one might have expected to see some insulation surviving had there been grommets[763]. In particular, as seen in Pro 1037Y, the cables at the central knockout were more or less intact. If there had been a grommet at that location which had been burned to destruction, one would have expected much more damage to the cables[764].
47. The inference is that whichever of the electricians who was on site for Star Electrical Services (Strathclyde) Limited installed this distribution board did not fit grommets at the cable knockouts[765].
Outer sheath of Cable V not protecting the inner core
48. Mr. Mortimore formed the view that the outer sheath of Cable V terminated outside the distribution board[766]. The sheath appeared to stop short of the board[767]. Furthermore, an attempt was made to align Cable V and the other cables[768] and it was Mr. Mortimore's impression that the other cable had more cable sheath on them than Cable V[769].
49. The insulation on the external wires became progressively more damaged the closer it was to the distribution board back plate and the cable entry holes through it[770]. Mr. Mortimore accepted that it was possible that what he had observed had occurred as a result of the fire[771].
50. If the Court were to conclude that Cable V was installed as an afterthought[772], it is explicable how it could have come about that the outer sheath of that Cable was not protecting the core. Installing Cable V as an afterthought, after the distribution board had already been fitted and wired up, would have been an awkward job[773]. The electrician would have had to feed the cable down the void between the two cupboards and fish it through the knockout into the distribution board. He would then have to strip back the sheath to expose the inner cores, and terminate each of them appropriately. He would connect the red wire to the relevant circuit breaker, the neutral core to the neutral bar and (after fitting a sleeve) the earth core to the earth bar. He would then push the cabling back. In doing this, one can envisage the edge of the grey outer sheath ending up on the wrong side of the knockout[774]. It would also have been possible, in the context of such an installation, for the outer sheathing to have become shaved or damage on the edge of the knockout[775].
Evidence of overheating of Cable V
51. A piece of bituminous felt (Label 544) lying across Cable V in the attic was found to have adhered to Cable V. There was a mark on the underside of the felt where the bituminous substance of the felt had softened. This is shown in Pro 858L and Pro 858M. The softening coincided with the routing of Cable V. There was also some black bituminous residue on the cable itself. The only reason that the bituminous substance of the felt would soften would be due to heat. This evidence accordingly indicated that Cable V had got warm at some stage[776].
Comment on the quality of workmanship exhibited by the electrical installation
Absence of grommets at the knockout
52. This was: (a) contrary to the IEE Regulations; (b) contrary to the manufacturer's recommendations; and (c) contrary to good electrical practice.
The route of Cable V
53. One should not normally route a cable down a piece of pipe[777]. The cable was not supported along its length to protect it against damage from vibration or from its own weight[778]. Nor would one normally seal the hole with pieces of sticky tape in the manner seen in Pro 857N. Although this would not technically be a problem, it did not look like a very good job[779]. Stuart Mortimore described the arrangement as "a bit of a lash-up"[780]. Mr. Madden stated that this was a "poor standard installation"[781].
54. The hole cut in the pipe was not a neat job. Although it did not create a danger, because plastic is a relatively soft material, the arrangement was not best practice[782]. Mr. Millar described it as "very poor workmanship"[783].
55. The way the cables were lying in the roof was very untidy. They should have been clipped neatly to prevent people from tripping over them in the roofspace[784].
The rating of Cable V
56. The cross sectional area of Cable V (6 mm2) was too low for the maximum load which it could have been called on to supply if the heating elements of both washing machines were to have been in operation at the same time[785]. The electrician installing the cable should have proceeded on the assumption that both machines were fully serviceable and that accordingly the maximum current which could be drawn by the two washing machines together was 41 amps[786]. For 41 amps current, there should have been a 10 square millimeter cable. However, in fact, having regard to diversity (i.e. the cycling time off and on), a 6 square millimeter cable was, in fact, adequate: even if the current drawn was 41 amps, the cable would not in fact overheat[787]. And, in fact, Mr. McRae had taken steps, by disconnecting one of the heating elements on the Minett, to bring the current drawn, if the heating elements of both machines should be operating at the same time, under 32 amps[788].
The Merlin Gerin circuit breaker
57. The rating of the Merlin Gerin circuit breaker (50 amps) was too high, having regard to the rating of Cable V. Cable V was rated at 32 amps[789]. This did not satisfy regulation 11 of the Electricity at Work Regulations[790]. Indeed, because the cable was grouped with other cables, arguably, the rating should have been reduced to 26 amps. And the circuit breaker also protected the white cable to the Minett which was rated at only 25 amps[791]. On the other hand, with both washing machines being served by that cable, the starting current of the washing machine motors would probably have caused a circuit breaker of 32 amps or less to trip[792]. The practical implication of this should have been to increase the size of the cable serving these machines so that one could safely have a circuit breaker which would not trip all the time[793].
58. It was bad practice to instal a circuit breaker from one manufacturer in a distribution board made by another manufacturer. This introduces the risk of a poor electrical connection, which can create the conditions for overheating[794]. In fact, in this case, it was not a problem[795].
The connection between the two switches in the laundry
59. The connection between the two isolator switches in the laundry were not properly made. There were lengths of unprotected basic insulation not protected by the outer sheath of the cable and accordingly exposed to mechanical damage[796].
CHAPTER 12: MAINTENANCE OF THE ELECTRICAL INSTALLATION
Context
Relevant guidance
1. Regulation 4(2) of the Electricity at Work Regulations 1989 provided:-
"As may be necessary to prevent danger, all systems shall be maintained so as to prevent so far as is reasonably practicable such danger."
The fixed electrical installation at Rosepark was an electrical system which fell within the scope of this provision. Failure to carry out maintenance of the system created a risk of injury due to damage and deterioration of the system[797].
2. The means by which the system is maintained was a matter for the duty-holder, in this case the partnership who were the employers at Rosepark. However the most common means of doing so was and is by periodic inspection and testing[798]. The Memorandum of Guidance to the Regulations published by the HSE advises that regular inspection of equipment is an essential part of any preventive maintenance programme[799]. The Memorandum of Guidance advised that the frequency at which preventative maintenance required to be carried out is a matter for the judgment of the duty holder[800].
3. The IEE Regulations as they existed throughout the life of Rosepark Care Home before the fire, specified that electrical installations should be inspected and tested periodically[801]. Periodic inspection and testing would involve a person examining the fixed parts of the electrical examination, looking for damage, deterioration, wear and tear and non-compliance with the British Standard. In addition, a sample of the installation should be tested[802]. In the context of a periodic inspection undertaken in accordance with the IEE Regulations, the electrician undertaking the inspection would require to remove the front cover of a distribution board such as the distribution board in cupboard A2, so that he could visually inspect the inside of the unit. He would inter alia look for loose connections, signs of overheating and damage, wear and tear, ingress of moisture and dust. He would check that the cables are not damaged in any way and that sheath cables enter into the back of the consumer unit so that the insulated conductor is not exposed to damage against the edge of the consumer unit[803].
4. At the time when the Home was constructed five years was the default period for periodic inspection and testing, specified in a Note in the IEE Regulations. This would have applied to a care home[804]. In fact, after he had carried out the electrical installation at Croftbank, Mr. Ross and a colleague issued a certificate recommending that the system there be inspected and tested within two years.
5. In 1992, in conjunction with the 16th edition of the IEE Regulations, the IEE published a Guidance Note on Inspection and Testing. Table 4A of this Guidance Note[805] specified five years as the appropriate maximum period between inspections for hospitals. This could reasonably be applied to care homes[806]. The same maximum period was recommended for hospitals in subsequent editions of the IEE Guidance Note, published in June 1995 and 1997[807].
6. In addition to periodic inspection and testing, the 3rd edition of the IEE Guidance Note on Inspection and Testing contained advice on routine checks. It advised that: "Electrical installations should not be left without any attention for the periods of years that are normally allowed between formal inspections"[808]. Routine checks are an essential part of preventative maintenance of an electrical system[809]. The recommended maximum period between such routine checks for premises such as hospitals was 1 year[810]. Such a check should include an inspection that looks for breakages, wear, deterioration, signs of overheating, missing parts such as covers and screws, accessibility of switchgear, security of enclosure doors, adequate labeling and loose fittings[811]. Such a check would not require the removal of the front cover from the distribution board and would accordingly be unlikely to uncover the absence of any grommet or other cable protection at the knockout.
7. A regime of regular visual inspection along the lines recommended in this Guidance Note, while itself a necessary part of any system of preventative maintenance, would not have been an adequate substitute for periodic inspection and testing and would not, on its own, constitute an adequate regime of continuous monitoring and maintenance[812]. A visual inspection which did not involve taking the front cover off the distribution board would be of limited use[813]. Such an inspection would not meet the requirements of the IEE Regulations as regards periodic inspection and testing[814]. Nor would it satisfy the requirement for maintenance of the electrical system of a care home[815].
8. IEE Inspection and Testing Guidance Note 3 allowed for periodic inspection and testing to be replaced by an adequate regime of continuous monitoring and maintenance of the installation[816]. This was first introduced as an alternative in the British Standard 2001 and written into the Guidance Note in 2002[817]. A range of options for continual monitoring are available: one could install automatic devices that will monitor the system[818]; an electrician could periodically go round the system with a thermal imaging camera; an electrician could visit frequently and carry out inspections and tests of a subset of the system. A process of periodic visual inspection would not satisfy the requirement for a regime of continuous monitoring[819].
Work undertaken by Mr. Ross
9. Throughout the period from the construction of Rosepark until the fire in January 2004, Mr. Ross was in full time employment[820]. From time to time, however, Mr. Ross carried out work for the Balmers on a casual basis, being paid cash and without insurance[821]. In particular:-
9.1. In July 1993 an application was made for building warrant to create en suite WC facilities for three rooms on the upper floor and two on the lower floor at Rosepark. Mr. Ross undertook the electrical work associated with this alteration on a casual basis on his own account[822].
9.2. In 1996, Mr. Ross, along with a colleague, carried out the electrical installation at Croftbank[823].
9.3. In about 1998, an additional bedroom (room 37) was created on the lower floor at Rosepark where previously there had been a drugs room[824]. Mr. Ross undertook the electrical work associated with this alteration[825].
9.4. In about 1998 the conservatory was added to the dayroom at Rosepark. Mr. Ross undertook the electrical work associated with this alteration[826].
9.5. He undertook the electrical work for the extension at Croftbank in 1998[827].
9.6. He undertook the electrical work for the extension at Croftbank in 2001[828].
9.7. He undertook some other jobs which he was paid on a one-off basis for, including moving a photocell cable for outside lights and changing it to a time switch[829].
9.8. Mr. Ross also undertook work for both Thomas and Alan Balmer at their homes[830].
10. Mr. Ross was the only electrician Rosepark called upon to do ordinary electrical work (as opposed to work relating to alarm systems)[831] until Mr. Muir started to do work at Rosepark. The only general electrical work (as opposed to control systems) which Mr. Muir undertook at Rosepark relating to light fittings in the foyer[832].
Portable appliance testing
11. For a number of years before the fire, annual testing of the portable appliances was undertaken at Rosepark.
a. In January 1995, Mr. Ross undertook an inspection of portable appliances[833].
b. Mr. Clark undertook inspection of portable appliances in each year 1998-2003 inclusive (and indeed in previous years)[834]. That included "plug top" testing of the switches in the laundry[835].
The fixed electrical installation
12. The only checking which was undertaken on the fixed electrical installation between the construction of the Home and the fire in January 2004 was undertaken by Alexander Ross. Mr. Ross described what he did as follows:-
"Mr. Balmer used to come over on a ... at the start of the New Year with a, perhaps, a bottle and, eh, maybe some pens and calendars and just, eh, just for the fact that I had been doing jobs for him and eh then, if I got a chance I would take a quick wa ... a walk through the building, but nothing, no testing or anything, just like visual thing with a quick walk through just to see there was nothing looking dangerous like sock ... broken sockets or anything like that fashion"[836].
13. During these walk throughs:-
13.1. Mr. Ross undertook a visual inspection, checking for things like damaged sockets and loose light fittings[837].
13.2. He might look at the consumer units. He stated that this was just a visual examination[838]. Mr. Ross specifically stated that he would neither open the front plastic covers, nor would he unscrew the front face of the board to examine its internal workings[839] - indeed that he had never opened the plastic doors[840].
14. Mr. Ross did not charge Rosepark Care Home for doing this visual inspection[841]. He neither produced a report on the exercise, nor was he asked to do so[842]. Mr. Balmer did not ask Mr. Ross to produce any records of what he was doing[843].
15. At no time did Mr. Ross inspect and test the electrical installation at Rosepark in accordance with the IEE Regulations[844]. He was unaware of anyone else undertaking such an inspection and test[845]. Mr. Ross understood the nature of a periodic inspection and test under the IEE Regulations and, in particular, that this would involve opening up the fuse boxes[846]. He gave evidence that he was never asked to undertake a "full test or inspection". Such an exercise would have taken some time, would require him to get hold of the appropriate instruments, and was not the sort of exercise that could be done without a specific instruction[847]. Apart from the portable appliance test, Mr. Ross did not carry out any other inspection or testing at Rosepark for which he made a charge[848].
16. Thomas Balmer gave evidence that he saw Mr. Ross opening the doors over the circuit breakers, having a look, feeling for heat, asking whether there were any circuits that were continually tripping and himself "testing" the circuit breakers by tripping them to make sure they would reset again[849]. In the event that the conflict between Mr. Ross and Mr. Balmer in this regard requires to be resolved, Mr. Ross' evidence should be preferred to Mr. Balmer's. Mr. Balmer sought to rely on Mr. Ross' exercise as a process of "continual monitoring" by "regular visual inspection" [850]. His evidence on this whole chapter of the inquiry is unsatisfactory.
16.1. He claimed "it was recommended at the outset that, better to have a qualified electrician do a regular visual inspection and, indeed the Electrical Regulations allow that to be, to be so and to have a continual monitoring". He claimed that when Rosepark was being completed, he asked one of the electricians working on the main board whether it took much maintenance and was told "No. Better to have a qualified electrician continually monitor the situation... to have a regular visual inspection is best. And, indeed, when I checked the regulations, it suggested monitoring was a good system to have in place"[851].
16.2. Later, when confronted with the IEE certificate issued on completion of Croftbank House, which recommended inspection and testing within an interval of two years, the account became more elaborate, to include an element - the tripping and resetting of circuit breakers - which he regarded as "testing". By contrast with his earlier description of "continual monitoring" he appeared now to characterize what he was describing as "inspection and testing" as referred to in that certificate.
16.3. Although continual monitoring is a recognized alternative to inspection and testing for certain types of installation:-
16.3.1. This first appeared as a recognized alternative to inspection and testing in the 2001 edition of BS7671 and the 2002 edition of the IEE Guidance Note[852].
16.3.2. Continual monitoring as envisaged in the IEE Guidance was something quite distinct from visual inspection. A process of regular visual inspection would not satisfy the IEE Guidance[853].
16.3.4. It lacks credibility that Mr. Balmer should have made a conscious decision as to the approach to be taken to maintenance of the electrical installation on the basis of a casual conversation with an un-named individual employed or sub-contracted by Star Electrical[854].
17. But it may be that the conflict need not be resolved.
17.1. Even if Mr. Balmer's evidence on this matter were to be accepted, it is apparent that Mr. Ross did not take off the front of the distribution board to expose the wiring behind[855].
17.2. On no view would what Mr. Balmer described amount to an adequate regime of inspection and testing of the fixed electrical installation[856].
18. Following the fire, a series of documents was recovered from the filing cabinet in the Balmers' office at Rosepark.
18.1. A document in the following terms (Pro 215, p. 60) was recovered from a wallet file with a label on the front "Comtec Systems", which was found in a filing cabinet in the Balmers' office[857]:-
"Alex Ross ... electrical
126 The Loaning
Motherwell
0698 261738
24 hr electrical care.
Rosepark Nursing Home
261 New Edinburgh Road
Uddingston g71 6ll
Dear Sirs
Thankyou for your enquiry of 20th January 1993 regarding 24 hr electrical cover for above nursing home.
I will be delighted to provide 24hr elerctrical cover. As your building is a new build I suggest our cover be on a call-out basis and look forward to working with Rosepark Nursing Home.
Yours faithfully
[Manuscript "Alex Ross"]
Alex Ross"
18.2. A document in the following terms (Pro 215, p. 6) was also recovered from the same wallet file[858]:
"Alec Ross ELECTRICAL
24 Electrical care 126 The Loaning
Motherwell
2698 268926
Rosepark Nursing Home
261 New Edinburgh Road
Uddingston G71 6LL
Dear Sir
Thankyou for your enquiry of 20th January 1993 regarding 24Hr electrical cover.
I confirm my acceptance to cover Rosepark Nursing Home and all electrical work therein. As you are a new build I consider service on a callout basis would suffice.
Looking forward to working together.
Yours faithfully
[Manuscript 'Alec Ross"]
Alec Ross"
18.3. The following document (Pro 583) was found in the filing cabinet in the Balmers' office[859]:-
" 3 yr Contract
Alex. Ross ..... electrical
The loaning
Motherwell.
01698 261738
Rosepark Nursing Home
261 New Edinburgh Road
Uddingston
20th January 2000
Dear Tom
Rosepark & Croftbank House Nursing Homes
Thank you for valued enquiry regarding Electrical Cover & Maintenance for your care homes.
I would be delighted to continue 24 hour cover as follows and offer the following cover for Three years commencing 1st February 2000. This extended contract allows me to organize my work schedules and trust you will find this an advantage.
Annual Inspection of all electrical installations, earth bonding and all portable appliances and plug top testing inspected as per electrical schedule.
As agreed charges will be £25.00 per hour and £35.00 for out of hours call and trust his meet with your requirements.
New installation and alterations will be priced prior to work commencing.
Yours sincerely
[Manuscript "Alex Ross"]
Alex Ross
18.4. The following document (Pro 215, p. 5) was also found in the Comtec systems file in the filing cabinet in the Balmers' office[860]:-
"Alex. Ross ..... Electrical
126 The Loaning
Motherwell
ML1 3LU
01698 261738
Rosepark Nursing Home
261 New Edinburgh Road
Uddingston
1st February 2003
Dear Tom
Rosepark & Croftbank House Nursing Homes
Thank you for valued enquiry regarding Electrical & Maintenance cover for your care homes.
I am delighted to continue 24 hour cover and offer you a three year contract from above date on the following basis.
Annual inspection of all electrical installations, check all earth bonds and current flow.
As agreed charges to be £25.00 per hour and £35.00 for out of hours call and trust this meets with your requirements.
Additions and alterations will be priced prior to work commencing.
Yours sincerely,
[Manuscript "Alex Ross"]
Alex. Ross"
19. All of these documents were prepared by Mr. Balmer at Rosepark[861].
19.1. The apparent signature on the first of these documents (Pro 215, p. 60) was indeed written by Mr. Ross.
19.1.1. Handwriting analysis disclosed that this was likely to have been written by Mr. Ross[862].
19.1.2. Mr. Ross described the circumstances in which he signed this document[863].
19.2. On the other hand, the manuscript words "Alex Ross" in the documents dated 20 January 2000 and 1 February 2003 were appended by Mr. Balmer.
19.2.1. Handwriting analysis disclosed that it was unlikely that these words were written by Alexander Ross[864].
19.2.2. Thomas Balmer accepted that he had written the manuscript words "Alex Ross" where they appear in the documents dated 20 January 2000 and 1 February 2003, in circumstances outlined below[865].
19.2.3. Although Mr. Ross was initially prepared to accept that these apparent signatures looked like his[866] and indeed, accepted that he had signed these documents[867], his evidence in that regard is unreliable. It was apparent that he was puzzled by various features of both these documents.
20. The background to these documents was this. At some point after Mr. Ross had undertaken the work in July 1993 in connection with the new en suite facilities, Thomas Balmer asked Mr. Ross if he could provide him with 24 hour emergency cover. Mr. Ross agreed to this[868]. Mr. Balmer told Mr. Ross that he needed something from him in writing[869]. Mr. Balmer drafted the first of these documents (Pro 215, p. 60)[870] and brought it to Mr. Ross' house where Mr. Ross signed it[871]. The name "Alex Ross Electrical" was Mr. Balmer's suggestion, to which Mr. Ross agreed[872]. There was no such entity[873].
21. Notwithstanding the terms of these documents, Mr. Ross was at all times in full employment and was accordingly not in a position to provide 24 hour cover. When Mr. Balmer first asked him to provide 24 hour cover, Mr. Ross had raised this with Mr. Balmer. They discussed the fact that Mr. Ross was working in full time employment and could not possibly give him 24 hour cover. Mr. Balmer told Mr. Ross that it wouldn't matter because it would probably never be required[874].
22. Mr. Balmer stated[875] that "24 hour cover was never really required. I think it's a, it could be elected as a misprint. It was really an on-call cover. We never ever ... I've never known in any of our places over the years to have a reason to call electricians outwith daylight hours, shall we say." He stated that a need for on-call cover would probably arise more critically during the day[876]. When Mr. Balmer was asked how, if Ross was employed elsewhere during the day, he could provide that sort of cover, he said this[877]: "Well, we never, ever had a problem or a concern but I can see that it may be a concern but, we would have contingency plans if there was something critical happened, we would call in any emergency electrician, or whatever, if required to do so."
23. Mr. Ross thought he was just "signing up ... to help Mr. Balmer"[878]. Mr. Balmer told him that he needed an electrician in place to obtain his certificate for operating the Home[879]. Mr. Ross saw these letters as "just a way of helping him out, to, to give them, that I would be there if he needed me and he wanted to make it look official ... to make it look official, that he had someone in place"[880].
24. The relationship between the first two of these documents (Pro 215, p. 6 and p. 60) is unclear. Mr. Balmer thought that one of them was a renewal of the other, in which the date had not been changed[881].
25. The third document, dated 20 January 2000 (Pro 583) was prepared by Mr. Balmer and was never seen by Mr. Ross.
25.1. r. Balmer stated that he remembered trying to reach Mr. Ross personally without success as he and his wife were going off on holiday. He needed the document in place so he spoke to Mr. Ross on the phone and said "Alex, time for renewal. Are you happy enough for me to sign you back up for your electrical cover as we are going on holiday?" Mr. Ross agreed[882]. He later confirmed that if he were having a discussion with Mr. Ross of that sort, the way he would put it to Mr. Ross was whether he was willing to carry on providing cover and that it would be reasonable to assume there would be no specific discussion in such a conversation about annual inspection of electrical installations and the checking of earth bonding and so on[883].
25.2. Mr. Ross' evidence in relation to this document was that, as far as he was concerned what he was agreeing to was "just what it had been in the past, that I would be available if required and that any other work would be done separately"[884]. He did not remember discussing the document. While he said that "it was presented to me and had a look at it and signed it"[885] that evidence is unreliable, given the evidence that he did not, in fact, sign this document.
26. There are unsatisfactory features of this document:-
26.1. It is a markedly different document from the previous document. The terms of the document in fact bore, in their terms, to do much more than sign Mr. Ross back up to continue the previous arrangement. In particular, they bore to sign Mr. Ross up to annual inspection of the electrical installation, something which, on Mr. Balmer's own account, was done without Mr. Ross' knowledge or consent.
26.2. The contractual services bear to include "portable appliance and plug top testing". In fact, Mr. Clark had been undertaking the portable appliance testing at Rosepark for several years. Mr. Balmer accepted that he had no expectation that Mr. Ross would be carrying out any portable appliance testing at that time[886]. Mr. Ross confirmed that after 2000 he did not carry out any portable appliance and plug top testing at Rosepark[887]. Mr. Balmer accepted that this document was misleading in this respect[888].
26.3. The document bears to "continue 24 hour cover". Mr. Ross had never been in a position to provide 24 hour cover, and continued to be in no position to provide 24 hour cover. Mr. Balmer stated that this should have read "on call cover"[889]. When it was put to him that Mr. Ross was in no position to provide on call cover either, his respose was "Well depending the, the severity of the emergency, of which there, there weren't any at all, ehm, so it's very hard to, ehm, give you an answer to that one"[890]. He accepted that the document was in this regard misleading[891].
26.4. Mr. Balmer did not know whether Mr. Ross had ever charged for any work under this agreement. Nor could he say whether as at the date of the agreement Mr. Ross was, in fact, carrying out any inspection of the electrical installation[892].
27. The fourth document, dated 1 February 2003 (Pro 215, p. 5), was also prepared by Mr. Balmer and never seen by Mr. Ross. Mr. Balmer stated that in late 2002, Mr. Ross was doing electrical work for Mr. Balmer at home, and alluded to the fact that he was still available to do that and would be all right to continue with the cover, so Mr. Balmer signed that document as well[893].
28. There are unsatisfactory features about this document:
28.1. The checking of "current flow" was not something which would be done in relation to a fixed electrical installation, or in the context of inspection and testing of a fixed electrical installation[894]. Mr. Ross himself when shown this letter did not recall that provision, and said that it looked "a bit strange"[895]. When asked what the phrase meant, he said "It doesn't mean anything. I know what a current flow is but it's not the type of thing you would ... you would maybe .. .you would perhaps measure it but it just seems a bit alien to testing and inspection to me"[896].
28.2. Mr. Balmer explained that reference as relating to a specific piece of work which Mr. Ross had undertaken at Croftbank House when he had advised that a heavier circuit breaker was required to take the load from a new washing machine[897]. He accepted that this was not something which would, in fact, be required as part of an annual inspection of all electrical installation and stated that it would be considered additional work[898].
28.3. Although the letter purported to "continue 24 hour cover" Mr. Ross had not been providing 24 hour cover at the time when this document was signed[899]. Nor was there any expectation that he would be providing 24 hour cover during the lifetime of the document[900]. The document was, in this regard, as Mr. Balmer accepted, misleading[901].
28.4. Mr. Balmer had no recollection of Mr. Ross invoicing him any charges under the February 2003 document[902].
29. Mr. Ross did not understand at any time that he was committing himself to carry out an examination the result of which would satisfy the IEE Regulations[903].
30. These were documents which would be made available to inspectors from the Health Board and Care Commission[904].
CHAPTER 13: CUPBOARD A2
General description
1. Cupboard A2 was located in corridor 4 just before the corner (i.e. in the corridor running from the central stairwell/lift area to the corner) on the righthand side[905]. The cupboard had double wooden doors which opened out the way[906]. These doors looked the same as the doors of a cupboard in the equivalent location on the lower floor which is shown in Pro 886C[907]. They were not kept locked[908]. The left hand door was snibbed shut with a bolt and the righthand door closed onto a latch but not locked[909].
2. Within the cupboard there were three open shelves and above them an internal cupboard. Pro 914A is a photograph of the cupboard taken after the fire. It shows the numbering applied to the various shelves during the investigation:-
Shelf 1: the ground
Shelf 2: the first open shelf above the ground
Shelf 3: the middle open shelf
Shelf 4: the topmost open shelf
Shelf 5: the lower shelf within the inner cupboard
Shelf 6: the upper shelf within the inner cupboard
3. The open shelves did not extend across the whole width of the cupboard; rather, they extended from the northern (righthand wall) but a gap was left towards the southern (lefthand wall) where there the electrical distribution board, which has already been described[910], was located. The shelves were screwed down onto brackets[911].
4. Internally, the ceiling of the cupboard was above the level of the ceiling in the corridor outside.
5. The cupboard was connected to the ventilation system. The vent to that system was towards the northern (righthand) end of the partition above the doors. The vent can be seen in Pro 912N[912].
The Internal cupboard
6. The top of the internal cupboard did not reach to the ceiling of the cupboard. The internal cupboard had two shelves: the base of the internal cupboard and an upper shelf. The upper shelf was open to the ceiling because the cupboard unit had no top[913]. The internal cupboard had two doors which were kept locked.
7. The internal cupboard had been installed at the request of the Health Board so that toiletries could be kept under lock and key[914]. It was kept locked[915]. The key was kept on the wall beside the internal cupboard inside the main cupboard high up[916].
8. The internal cupboard contained shampoos, aerosols, and toiletries[917].Sadie Meaney had given an instruction that shampoos etc should be kept in this cupboard[918].
Contents of the cupboard
9. David Robertson, Forensic Scientist, along with his colleague Karen Walker, excavated the contents of both the cupboard and internal cupboard on 6th February 2004[919].
10. On the floor (Shelf 1), on the right hand side under the lowest shelf, he found a chamber pot, bowl and wooden coat hanger. There were also containers of E45 cream, a large safety pin and knitting needles. On the left hand side, to the rear, there was found the remains of a foot spa and cardboard box. The remains of some clear plastic boxes were found attached to the carpet[920]. There would have been knitting materials on top of the foot spa on the left hand side of the cupboard, and the distribution box would be immediately above[921]. Mrs McCondichie thought that the dart board was kept at the bottom of the cupboard along with games like carpet bowls.
11. On the lowest shelf (Shelf 2), on the left side, Mr Robertson found some beads, paper and a blue bean bag. Also on that shelf were melted pencils and felt tip pens, glue, postcards, tapes and a CD, an upturned tea candle, fake flowers, ribbons, body wipes, Kirby grips, a sewing box, a soft darts game, a plastic target, and a board game[922].
12. On the lowest shelf, (Shelf 2) on the right hand side, was a plastic crate (melted on the left side), a games compendium, folder, papers, stacks of photographs in a plastic bag on the right side of the crate, photograph frames in a bin liner, a plastic container with numbers, a jigsaw, a metal container of dominoes, playing cards, markers, a padded envelope with bingo and a book of party games[923].
13. On the middle open shelf, (Shelf 3) on the right side, were found latex gloves, a white plastic container; then, moving across the shelf, charred electrical hair tongs, a plastic bag of charred "McDonalds Economy Pads" behind which was a white ceramic oil burner, a glass bottle of Acetone with a plastic cap, 50ml., intact, cosmetics, eye shadow, lipstick, nail varnish, a charred plug cassette, videos and jigsaws[924]. On the same shelf there were also fragments of glass which had originally been an eau de cologne bottle[925]. The latter was a 250 ml bottle of Bronnley Blue Poppy body splash[926]. This cologne contained about 85% ethanol and the mixture had a flash point of about 17 degrees Centigrade[927].
14. On the middle open shelf (Shelf 3), on the left side, were found a charred "mosaicolour" board game on top of a stack of games[928]. Mrs McCondichie kept song sheets and board games on this shelf[929].
15. On the topmost open shelf (Shelf 4), on the left side, in a cardboard box, were found dominoes, solitaire, two bottles of Budweiser, a shower scrunchie, a jigsaw, a box of whisky fudge, Turkish delight, some bath lotion/gel and butterfly earrings. On the left most age was a 2 speaker cassette player[930].
16. On the topmost open shelf, (Shefl 4) on the right side, were found Christmas cards, postcards, paper folders, hymn sheets, books and a catalogue[931]. Mrs McCondichie thought that there would have been paperbacks on the shelf immediately below the internal cupboard[932].
17. On the lower shelf of the internal cupboard (Shelf 5), on the left side, there was found a red plastic container with radox bottles (in addition to hairspray, and shaving foam - see below)[933].
18. On the lower shelf of the internal cupboard (Shelf 5), on the right side, were found toothpaste (their boxes intact), toothbrushes and cotton buds, all inside a red plastic tray/basket; and a box of tissues and paper towels, a medicated cleanser bottle, calamine lotion, baby bath lotion, and Vicks, all inside a white plastic basket[934].
19. Also on the lower shelf of the internal cupboard were the remains of red and white plastic trays, a white plastic container containing cotton buds, comb, shaving brush, nail brush, 2 boxes of tights (as well as an exploded can of hairspray and cans of shaving foam - see below)[935].
20. On the top shelf of the internal cupboard (Shelf 6), on the left side, were found toiletries, shampoo/conditioner, foam bath; and, in the centre, the remains of a smoke detector[936].
21. On the top shelf of the internal cupboard (Shelf 6), on the right side, were found pieces of plastic inside a cardboard box, cardboard, plastic bottles, suntan cream, Vaseline lotion, and a melted vent cover[937]
Aerosols in the cupboard
22. At the time of the fire there was a significant quantity of aerosol cans in cupboard A2[938]. These were as follows:-
(a) Label 627 is the metal body of a single aerosol can. The can is intact apart from the absence of the top (i.e. the actuator mechanism)[939]. Pro 836B is a photograph of Label 627[940]. Following the fire Label 627 was found within debris on the left hand side of Shelf 1 (i.e. on the floor)[941]. It may be seen in situ in Pro 914L[942]. Having regard to its location within debris on the floor, it cannot be assumed that this aerosol was in this location before the fire: it could have fallen from a higher shelf[943].
(b) Label 628 comprises the metal bodies of two aerosol cans. These are intact apart from the absence of whatever would have been round the aperture on top[944]. The base of the smaller can had bellowed out[945]. Following the fire they were also found on the left hand side of Shelf 1 (i.e. on the floor)[946]. Pros 843A and 843B are photographs of these cans and they may be seen in Pro 843D[947]. These cans may be seen in situ in Pro 333E[948]. Having regard to their location within debris on the floor, it cannot be assumed that these aerosols were in this location before the fire: they could have fallen from a higher shelf[949].
(c) Label 631 is part of the body of an aerosol can with a blue base. Following the fire it was found on the right side of Shelf 1 (i.e. on the floor). Pros 847D and E are photographs of this aerosol can. It may be seen in situ in Pro 847A[950]. Having regard to its location within debris on the floor, it cannot be assumed that this aerosol was in this location before the fire: it could have fallen from a higher shelf[951].
(d) Part of another aerosol can was found embedded in the floor carpet[952].
(e) Label 629 is the body of an aerosol can. It has a large gash in its side. Pro 819B is a photograph of this aerosol can and it may be seen in Pro 819A and 910O. It was found in the middle of Shelf 3 (i.e. the middle open shelf)[953].
(f) Label 487 is a ruptured aerosol can (formerly containing hairspray) found on Shelf 5 (i.e. the lower of the shelves within the inner cupboard). Pro 836D is a photograph of this aerosol can. It may be seen in situ in Pros 913O and 913Q[954], where it can be seen at the back just to the right of the midline of Shelf 5[955].
(g) Label 486 comprises: a multipack of eleven aerosol cans of Insette hairspray shrink-wrapped together in clear plastic; and (ii) several other cans of shaving foam and hairspray. These were found on the left hand side of Shelf 5 (i.e. the lower of the shelves within the inner cupboard). Pro 844A is a photograph of these cans. The aerosols within the shrink wrap did not appear to have been subjected to excessive heat. When examined by Mr Martin in June 2010, the bottom crimps of the Insette aerosols within the shrinkwrap were corroded but the top crimps were in very good condition and could still operate to discharge the contents of the aerosols. Mr. Martin inferred that this was because the top crimps had been covered by the cap and so had not been exposed to so much wetness in storage. On some of the loose aerosols contents had been discharged from the top crimp. This appeared to have happened since the fire, since the discharged lacquer appeared clear and above the smoke damaged aerosol[956].
(h) Label 488 includes at least four aerosol cans of shaving foam and some other aerosol cans. These are shown in Pro 839A. They were found on Shelf 5, the lower shelf of the inner cupboard. The crimps of these aerosols were intact. When examined in June 2010, they appeared to be in good condition apart from general rust which could have occurred during storage[957].
(i) Label 490 includes a quantity of aerosol cans of Sabre shaving foam which were also found on Shelf 5, the lower shelf of the inner cupboard. These may be seen in Pro 834C[958]. They were of steel construction[959]. When examined by Mr. Martin in June 2010, some of these cans exhibited corrosion and were showing holes. The corrosion could have occurred during storage[960].
CHAPTER 14: CROSS-CORRIDOR FIRE DOORS
Location of cross-corridor fire doors
1. On the upper floor, fire doors were located at the following locations[961]:
1.1. Between the foyer area and the corridor containing the bedrooms.
1.2. On either side of the central stairwell.
1.3. Between bedrooms 18 and 17.
1.4. At the entry to the south-west stairwell.
Nature of the fire doors
2. All of these doors were solid - none had a glazed panel. All but the door into the south-west stairwell could be held open on a magnetic catch, which would release in the event of the fire alarm sounding. In that event the door would be closed by a self-closing device fitted at the top of the door. Each of the doors swung one way only[962].
Changes to the cross-corridor fire doors
3. Initially, none of the firedoors into the stairwells were held open on magnetic hold-open devices. Such devices were added at the doors into the central stairwell shortly after the home opened at the request of the proprietors.
3.1. The MISC 6 form, dated 14th February 1992, produced by Mr. Fothringham to Mr. McNeilly, certifying the installation of the fire alarm system, specified that there were three automatic door release devices[963]. This number would correspond to the two cross-corridor fire doors on the upper floor and the single door on the lower floor - i.e. excluding the firedoors at the stairwells[964].
3.2. Each of the firedoors into the stairwell had a notice affixed to them which stated "Fire door keep shut", which was not the appropriate notice for a door which was held open on a magnetic device[965]. This contrasted with the notice affixed to the cross-corridor firedoors which stated "Automatic fire door. Keep clear. Close at night"[966] and would be consistent with a door which did not have an automatic hold-open device.
3.3. In September 1992, Comtec installed an extra magnetic door unit at the main stairwell[967].
3.4. In July 1993, Comtec fitted a magnetic door contact on the door at the lift[968].
3.5. Mr. Fothringham stated that the only reason the doors into the central stairwell were held open was because they were in the main corridor and the owners required them to be open[969].
The corridor 3/4 firedoor
4. The corridor 3/4 firedoor between rooms 17 and 18 is shown in Pros 336A and 336B. When examined following the fire, had the following features:
4.1. The door leaf was of solid timber construction, nominally 45 mm thick, typical of a door leaf used in fire-resisting doorsets[970].It was true and flat, and did not suffer from any material distortion such as would have affected its operation[971].
4.2. The door was hung on two hurl hung hinges. Neither of the hinges showed any significant wear[972].
4.3. The door was fitted with a standard door closer, approved for use with 30 minutes timber door sets, at the top[973].
4.4. The door leaf was fitted with an intumescent seal which was fitted along the vertical edges and top edge of the leaf[974]. The intumescent seal had expanded along the majority of its length at the head of the door leaf and to a greater degree at the leading edge side[975].
4.5. There had been a kickplate (Pro 776) on the corridor 4 side of the door, which had become detached during the fire[976].
5. The hinges were not of a type which would normally be used on a heavy, fire-resisting door. This is because, as the door frame starts to char in response to a fire, hinges of this type will fail more readily than the more usual butt hinge. There was, though, no evidence that this had in fact occurred at Rosepark[977].
6. Above the door on each side was an exit sign. A photograph of a similar fitting on the equivalent door downstairs can be seen in Pro 886A. The plastic of the fitting on the corridor 3 side had become badly melted, as can be seen in Pro 336A[978].
The firedoor into the south-west stairwell
7. This door was also hung on two hurl type hinges and fitted with intumescent seals. The intumescent seal had expanded along some of its length at the head of the door leaf and at the hanging edge. This expansion was not significant or complete. It was not fitted with a smoke seal, so that smoke would be able to penetrate the gap between the door leaf and the frame[979].
Practice at Rosepark
8. The practice of the Home was that with the exception of the fire doors entering the stairwell at the south west end of the building (which were always kept closed), the other corridor fire doors were kept open during the day[980]. Mr. Balmer's view was that these doors should be closed at night once the evening medicine round had been concluded[981]. He understood that these doors should be closed at night because if the mechanism failed in a way which kept the doors open, compartmentation would be lost[982].
9. This reflected normal practice. That practice was widely regarded as good practice, on the basis that if such doors are held open on a magnetic device and are at the same time exposed to the forces of a self-closer, they may warp in a manner which would affect their function in a fire[983].
10. Pro 334I, one of the notices on the wall at the fire alarm panel, stated:
"Night staff must be extremely vigilant - make sure fire doors are all closed ...".
11. The corridor 3/4 firedoor had a label on it which read:
"Automatic fire door. Keep clear. Close at night."[984]
The firedoors at the central stairwell both had labels which read "Fire door. Keep shut"
12. The video advised that corridor fire doors should be closed at 11 pm and this was reflected in one of the questions in the questionnaire.
13. Matron, on the other hand, believed that the cross-corridor firedoors were left open through the night (although some nurses might close them over). She herself would have considered this acceptable for three reasons:
13.1. The doors would have closed over automatically if there was a fire alarm.
13.2. The doors had no glazed panel, which presented a danger if staff were opening the door, of hitting a resident who was on the other side[985].
13.3. Night staff were encouraged to sit at the corner of the dogleg, and if the corridor 3/4 door was closed they would not see a resident wandering[986].
She might have encouraged staff to close the doors at the stairs, because of the risk of falls[987].
14. The evidence was the cross-corridor fire doors were, in fact, normally left open throughout the nightshift[988]. Flora Davidson, exceptionally, said that at least some of them were closed[989].
Monitoring of the position
15. Thomas Balmer stated that when he visited in the evenings around 11 pm or 11.30 pm, these doors were always closed[990]. Other than occasional personal visits at night, he took no steps to check or audit the question of whether or not these doors were kept closed at night[991].
CHAPTER 15: BEDROOM DOORS
Construction at the time of the fire
1. The bedroom doors were ordinary doors, not fire-rated. At the time of the fire some of the bedroom doors had working door closers. Others had previously had closers, but these had been removed or disconnected[992].
Background
2. When Rosepark was constructed, bedroom doors were not required in terms of the Building Standards then applicable to be fire-rated[993]. The doors were originally fitted with Perko door closers. Mr. Dickie had told Mr. Balmer that "it would be a requirement to have the closing device fitted to the door for safety" and Mr. Balmer understood that this was because it "created inherency of fire protection within that room"[994].
3. The Perko door closers were not acceptable to Mr. McNeilly and he had insisted that overhead door closers be fitted before he would issue the goodwill letter for registration.
4. The door closers were removed at various times by Joseph Clark. This was always at the request of the resident, and would only be done with the authority of Mr. Balmer[995]. Door closers were first removed and disconnected when Brigid Boyle was Matron (i.e. between July 1992 and 1997)[996]. All of the door closers which had been removed or disconnected had been removed or disconnected before Ms Meaney came to Rosepark[997].
5. When Mr. Balmer first authorized the removal or disconnection of an automatic door closer he undertook no risk assessment exercise in relation to that step[998].
Changes to bedroom doors; the involvement of the Health Board
6. Concerns had been expressed by some residents that they could not freely get in and out of their rooms because of the door closers[999]. Mrs. Balmer raised this with Health Board inspectors during an inspection[1000]. The Health Board advised that closers could be removed in respect of residents who were finding the closers restrictive[1001]. They also said that the matter was under review[1002]. It was only following this discussion that management at Rosepark removed door closers[1003].
7. At an inspection by the Health Board on 9 February 1999, Ms McCallum noticed that the closers on some bedroom doors were not connected. The report of this inspection records: "There was some debate around this matter and the team agreed to look further into the regulations around door closers"[1004].
8. Ms McCallum gave evidence to the effect that following the inspection on 9 February 1999 she was sure she had contacted the Home and informed it that door closers had to remain fitted, but could not specifically remember doing this. It would not be safe to make a finding that such a communication occurred.
a. Mr. and Mrs. Balmer both gave evidence that they received no further communication about the subject following this discussion[1005].
b. A copy of the report as sent out on 20 April 1999, and a final copy sent out on 27 May 1999. Both of these contained the passage just mentioned without any change.
c. Nor was any further written communication received on the subject at Rosepark.
Equally, the management at Rosepark did not raise the issue again with the Health Board[1006]. Mr. Balmer acknowledged that it was unsatisfactory that this had been left hanging[1007].
9. If the inspectors had requested the Home to take any particular steps in relation to the question of bedroom doors, the Home would have been keen to respond to any request[1008].
10. Mr. Balmer recognized that the removal of the door closers meant "there would have to be a heightened awareness from staff to ensure ... those doors were closed ... [i]n the evenings when the resident was sleeping ..."[1009]. He took the view that removal of door closers was acceptable provided staff were being instructed to close bedroom doors at night[1010]. He took no steps himself to ascertain whether or not such an instruction had in fact been given to staff[1011]. He assumed that the Care Manager would have done this. He took no steps himself to ascertain whether or not doors were in fact being closed at night[1012]. Nor did the management at Rosepark apply their mind to the question of whether or not there was available at the time any technological solution which would ensure that in the event of a fire alarm sounding bedroom doors would be closed[1013].
Further dealings with the Fire Service
Construction of Croftbank
11. When Croftbank was built in 1996, the Fire Service issued a goodwill letter without insisting that the bedroom doors have door closers[1014]. The issue was revisited in the context of two extensions to Croftbank.
Extension to Croftbank 1997-1998
12. In 1997-98 a ten bedroom extension was constructed at Croftbank[1015]. The extension had already been effectively completed when the management requested the Fire Service to issue a goodwill letter. By this date, the first edition of SHTM 84 had been issued. This document inter alia specified that "All bedrooms (staff and resident) should be fully enclosed in construction which offers 30 minutes fire resistance" and that "Doors should be FD30S, fitted with an automatic self-closing device, with a "swing-free" arm activated by the operation of the alarm and detection system"[1016].
13. Mr. McNeilly insisted that the bedroom doors of this extension should be "self-closing fire resisting door sets which provide a minimum fire resistance of FT30 as standard"[1017]. The management of Croftbank complied with this requirement[1018]. On this occasion, Mr. McNeilly was content with Perko door closers[1019].
14. Once the work had been done, Mr. Balmer and Mr. Dickie met on site with Mr. McNeilly and Mr. Power of the Fire Service to discuss this requirement[1020]. Mr. Balmer and Mr. Dickie pointed out that the building had been built according to Building Regulations. Mr. McNeilly told them that he was working to SHTM 84, which recommended that these types of doors should be fire resistant and self-closing[1021]. Neither Mr. Dickie nor Mr. Balmer remembered reference to SHTM 84 being made[1022].
Extension to Croftbank 2001
15. In 2001 a further extension was built at Croftbank. In preparing the designs for this extension, Mr. Dickie took account of SHTM 84. The bedroom doors in this extension were specified to be fire-rated doors with door closers[1023].
16. Mr. Balmer and Mr. Dickie met with Mr. McNeilly in connection with this extension, on 21st February 2001. Mr. McNeilly's note of the points discussed includes reference to: (i) fire compartments; (ii) fire protection to walls, doors to bedrooms and stores; (iii) staff ratios in relation to rooms within zones; and (iv) means of escape[1024].
Proposed new unit at Rosepark
17. In April 1999 the Balmers sought building warrant for a freestanding nursing unit at Rosepark[1025], although this was not in fact built. The drawings specified that the bedroom doors would be "self-closing smoke-stop firedoors" providing 30 minutes of fire resistance[1026]. Mr. Balmer was aware that the plans for this unit specified that the bedroom doors would be fire doors[1027].
No reconsideration of the position at Rosepark
18. At the time of these various discussions, door closers had been removed from bedrooms at Rosepark[1028]. The position at Rosepark was not re-assessed in light of these various discussions[1029]. Mr. Balmer acknowledged, with the benefit of hindsight, that the discussions in relation to Croftbank extensions should have alerted him to the potential significance of door closers in care homes, and that if there were practical problems attendant on the use of such closers, the appropriate way to address that at the time would have been to consider whether there were technological ways of dealing with the matter, or at least taking advice as to the appropriate response[1030].
19. The management at Rosepark was aware that there were devices which could hold a door open and release it in the event that a fire alarm sounded - they had such devices on the corridor firedoors. They did not, however, address whether there was a similar device which could conveniently be fitted to a bedroom door[1031].
20. Had they sought advice from the Fire Service, they would have been advised that bedroom doors should be fire-resistant and self-closing and should not be left open at night. If there was an over-riding need to leave bedroom doors open at night, the Fire Service would have offered advice on the different types of mechanism that could have been fitted to accommodate this and allow the door to close in the event of a fire[1032].
Policy of the Home
21. The Home had no written policy on the question of whether or not (or in what circumstances) bedroom doors could properly be left open at night[1033]. Mr. Balmer did not issue any instruction or guidance about the question of closing bedroom doors[1034]. Mrs. Balmer took the view that the issue was more of a nursing matter than a management matter[1035], which she would leave to the Care Manager's judgment[1036]. Likewise, Mr. Balmer took the view that it was the Care Manager's responsibility to issue any instructions in this regard[1037]. He did not discuss the issue with the Care Manager; nor did she raise the issue with him[1038].
22. However:-
a. Both Mr. and Mrs. Balmer took the view that bedroom doors should, unless there was a good reason to the contrary, be closed at night[1039].
b. The members of the partnership took the view that, if a resident (or a resident's relatives) wished the bedroom door to be left open, those wishes should be respected. They took the view that the wishes of the residents were paramount[1040]. Mrs. Balmer felt that it was the resident's right to have his or her bedroom door open[1041].
c. Mr. Balmer appears to have taken the view that once the resident in question was asleep, nightshift staff should ensure that the door was closed, perhaps opening it again when they anticipated that the resident would be likely to waken again[1042].
23. Mr. Balmer recognized that if a resident's bedroom door was left open that would compromise an element of fire safety as identified by Mr. McNeilly at the outset[1043]. However, he did not seek any professional advice as to how the tension, which he recognized, between fire safety and the wishes of residents might be resolved[1044].
24. Ms Meaney's view was that the normal procedure would be to close the door, for reasons of privacy as well as fire safety. However, if a resident requested her door to be left open, or there was some other good reason for the door to be open, it could be left open[1045]. Staff might leave the doors open so that they could check on residents[1046]. Essentially, unless it was something which had been specifically requested by a resident or the resident's relatives, the question of whether individual doors were left open or closed was a matter for the judgment of the nurse in charge[1047].
25. The "Checklist for Evacuation" in the Policy Manual and, as modified for the firemen's strike, Pro 334I contained a statement to the following effect:
"Night staff must be extremely vigilant - make sure fire doors are all closed and plugs are pulled out"
Ms. Meaney took the view that this related to bedroom doors as well as cross-corridor doors[1048]. It is not at all clear whether this was the intention of the notice, but in any event, it is apparent that neither she nor management expected this instruction to be applied literally so far as bedroom doors were concerned.
Practice
26. Residents went to bed both during the backshift and after the nightshift staff came on. The decision whether or not to leave a bedroom door open or ajar was taken by the nurse or carer who put the resident to bed[1049]. When a resident was put to bed, the carer or nurse would ask the resident if he or she wanted the door left open. The resident's preference would be complied with[1050].
27. There were a number of other reasons why a bedroom door would be left open: for example, if the resident was ill (particularly at the latter stage of life) and required to be kept under observation, or was agitated and liable to get up and fall[1051]. And there were residents who might become very distressed if the door was shut[1052]. It was regarded as safer to have the door of a "wanderer" open since if the resident fell behind the door they could be injured pushing the door open[1053].
28. Mr. Norton stated that some doors were open, some were closed: as he put it, "there was no standard policy of closing all doors ..."[1054].
29. This had been the practice since at least 1997 and did not change either after the video was introduced or after the meeting relating to the Fire Brigade strike[1055].
30. If the backshift had put a resident to bed and left the door open, the nightshift staff would simply leave the bedroom door open[1056].
31. A resident's preference in relation to having his or her bedroom door open or closed was not noted in the care plan. This was not something which was discussed with a resident on admission. Nor was it discussed with the relatives of a resident who could not express a preference[1057].
32. The doors which would otherwise close by themselves would be held open using wedges. There were wedges in the bedrooms to put under the doors to hold them open[1058]. Someone who visited the Home would be liable to see doors that were being held wedged open and wedges lying about[1059].
Management's awareness of practice
33. The management at Rosepark was not aware of the extent of the practice of bedroom doors being left open at night.
34. Mr. Balmer was aware that there were requests that certain residents' bedroom doors be left open at night and that some residents became distressed if their bedroom doors were closed at night[1060]. During visits to the Home during the night, he would find bedroom doors closed, with the exception of one or two with staff going in and out[1061]. When he found this he took no steps to satisfy himself that those doors would be closed at an appropriate point. He assumed that staff would close the doors once they had finished in that room[1062].
Policy Manual
1. Pro 259 was the Policy Manual which contained the policies of Rosepark Care Home which applied at the time of the fire[1063]. It was normally kept in Matron's office, although following the fire it was found in a cupboard in the drugs store opposite Matron's office[1064].
2. According to Mr. Balmer this Manual was prepared by Matron[1065]. He did not himself put any entries into the Policy Manual[1066]. Mrs. Balmer likewise stated that the Care Manager worked more the with Policy Manual and updating it[1067].
Health and Safety Policy
3. The Policy Manual contained a Policy Statement in the following terms (p. 8):
"Our policy is to provide and maintain safe and health working conditions, equipment and systems of work for all our employees, and to provide such information, training and supervision as they need for this purpose. We also accept our responsibility for health and safety of other people who may be affected by our activities.
The allocation of duties for safety matters and the particular arrangements which we will make to implement the policy are set out below.
The policy will be kept up to date, particularly as the business changes in nature of size. To ensure this, the policy and way in which it has operated will be reviewed every year.
Signed: Thomas Balmer
Title: Owner
Date: 12/11/02
4. The Health and Safety Policy of Rosepark Care Home was set out at p. 19 of Pro 259. It was in the following terms:
"Rosepark Care Home intends to comply with the spirit as well as the letter of the Health and Safety at Work etc, Act 1974, and all associated health & Safety Regulations brought under this act including the Management of Health & Safety at Work Regulations 1992.
We will develop a control system, which is designed to provide speedy recognition and resolution of health and safety problems.
While each employee has a responsibility for health and safety, the prime responsibility rests with Staff Nurses and Heads of Department to maintain safe working practices that will be assisted by Matron and Owners.
The person with overall responsibility of the premises: ROSEPARK CARE HOME, 261 NEW EDINBURGH ROAD, UDDINGSTON, G71 6LL
Is MR THOMAS BALMER & MRS ANNE BALMER
Health & Safety is given the highest priority in terms of management objectives.
The statutory duty to communicate this policy to all employees Is met by Matron.
Local Health and Safety Policies and Procedures will be developed to address the specific issues that affect our staff.
Additional procedures, instructions and practices, which apply to a specific location or department will be advised and discussed with all staff at regular staff meetings.
These procedures will be subject to regular audit and review. This particular policy will be revised, and if necessary, revised.
Signatures: Thomas Balmer Anne Balmer
Mr. Thomas W. Balmer Mrs. Anne Balmer
(Owner) (Owner)
Dated: 12.11.02"
5. This document was a pro forma. It had not been framed by Mr. Balmer[1068]. Mr. Reid did not recognise it - or any of the documentation in the Health and Safety section of the Policy Manual - as his[1069].
Risk Assessment Policy
6. The Policy Manual contained a section headed "Risk Taking and Risk Assessment Policy"[1070] which contained the following:
"Taking risks is a part of normal life. People living in Rosepark Care Home should have, as far as possible, the same rights as those living in home. The key element for staff and residents is risk assessment."
7. This section included a section: "Health and Safety - Assessing "Hazards and Risks"[1071]. This stated inter alia:-
"A Hazard is something with the potential to cause harm.
A Risk is the likelihood of that potential being realized.
Who Will Carry Out Assessment of Hazard/Risks?
Ideally, the Head of Department is the person best suited to assess Hazard and recommend appropriate action.
This should be done using Rosepark Asessment Sheet. All action to be recorded along with recommendation.
Joint Department Assessments to be overseen by Matron and Lead Person or Depute Lead Person.
All completed assessments and recommendations to be filed.
Duties of Department Heads
- identify possible Hazards
- Identify those at risk
- Evaluate Risks
- Decide on control measures
- Record all significant assessment
Five Step Guide for Department Heads
1. Look for potential hazards
2. Decide who may be harmed
3. Evaluate the risks from those hazards
4. Record your findings
5. Review your assessment, revise if necessary"
The "Assessment Sheet" form attached bore to require Matron's signature.
8. This part of the policy document was, in fact, concerned with the risk assessment of specific day to day activities[1072]. The sheets were used by the Domestic Department to make sure that all COSHH Regulations were met and by the Catering Department to deal with various matters within that department[1073]. Matron did not recall ever having been involved in completing such risk assessment sheets. The only risk assessment process that she was involved in was the kind of risk assessment found in the Care Plans in relation to the care of individual residents[1074].
Fire Policy
9. The Policy Manual contained a number of documents relating to fire safety. These were as follows: -
10.1.
"PREVENTION OF FIRE
POINTS TO REMEMBER
CHECKLIST FOR EVACUATION
1. CHECK TELEPHONE NUMBERS OF STAFF NAMED ON THE FIRE LIST ARE CORRECT.
2. FIRE EXITS ARE UNOBSTRUCTED AND AVAILABLE.
3. FIRE ALARMS AND EMERGENCY LIGHTS ARE IN GOOD WORKING ORDER
4. FIRE FIGHTING EQUIPMENT AVAILABLE AND READY FOR USE
5. ALL MEMBERS OF STAFF MUST KNOW -
A) HOW TO RAISE THE ALARM
B) HOW TO CALL THE EMERGENCY SERVICES IN CASE OF UNFORSEEN CIRCUMSTANCES
C) KNOW WHERE THE FIRE ESCAPES ARE
6. DO WHAT THE PERSON IN CHARGE DIRECT YOU TO DO SO AS TO ACT MORE QUICKLY
7. NO STORAGE OF ANY KIND TO BE LEFT ON STAIRCASES - NO FIRE ESCAPE DOORS BLOCKED AT ANY TIME!
8. NIGHT STAFF MUST BE EXTREMELY VIGILANT - MAKE SURE FIRE DOORS ARE ALL CLOSED AND PLUGS ARE PULLED OUT
9. FREQUENT ROUNDS MUST BE MADE - AND RESIDENTS CONSIDERED AS A "RISK" SHOULD BE CHECKED OFTEN DURING THE NIGHT
10. KITCHEN & LAUNDRY - SPECIAL ATTENTION TO MAKE SURE MACHINES AND EQUIPMENT ARE TURNED OFF AND PLUGS PULLED OUT
11. FOR EVACUATION OF NON-AMBULENT PERSONS WHEELCHAIRS SHOULD BE EASILY ACCESSED AT SPECIAL POINTS ON EACH FLOOR"
10.2.
"IMPORTANT
IN THE EVENT OF A FIRE
1. PERSON IN CHARGE TO DIAL 999 - THEN CALL KEY STAFF ON FIRE LIST.
2. RESPONSIBLE PERSON TO BE NAMED TO MEET FIRE CREWS ON ARRIVAL, IN ORDER TO PROVIDE THEM WITH ACCURATE INFORMATION AND SUPPORT
3. CLOSE ALL FIRE DOORS - IN ORDER TO PREVENT SPREAD OF FIRE
4. EVACUATE RESIDENTS IMMEDIATELY INVOLVED NEAR THE FIRE AREA - THEN CONTINUE TO EVACUATE THE OTHERS SYSTEMATICALLY AND CALMLY.
5. LEAVE ALL VALUABLES, BAGS, JACKETS, ETC., WHERE THEY ARE! DO NOT TAKE MATERIAL THINGS - SAVE YOURSELF AND THE RESIDENTS
6. CHECK LIST - TO BE CALLED BY NAMED PERSON - TO ENSURE ALL RESIDENTS AND STAFF ARE SAFELY OUT OF THE BUILDING"
10.3.
"PROMOTING FIRE SAFETY
PEOPLE DEPEND ON YOU FOR THEIR SAFETY
Fire can be a panic situation for a person who is confined to a wheelchair or bed, or for anyone who has reduced mobility.
IN CASE OF EMERGENCY, STAY CALM AND TAKE IMMEDIATE ACTION TO REMOVE PEOPLE FROM DANGER
RECOGNISING HAZARDS
Awareness of fire hazards is the first step toward prevention. Three elements are needed for a fire to start. By removing any of these elements, a fire can be prevented.
HEAT - Flame or Spark
OXYGEN - Normal Air
FUEL - Any Combustible Material (Items that catch fire and burn easily)
Alert the person in charge if you smell smoke or if a door feels hot.
DO NOT OPEN THE DOOR!
SMOKING
Never leave smokers unsupervised. Some people may not be able to handle smoking materials safely because of medication or reduced abilities.
Smoking materials should be stored for safekeeping. Strictly follow the smoking policy.
- Smoking is allowed in authorized areas only
- Be careful when you empty ashtrays
- Never use paper cups or rubbish bins for ashtrays
- NEVER permit smoking where oxygen is in use
STORAGE
Never store oily rags, paint cans, chemicals or other combustibles in closed areas.
FAULTY WIRING
Inspect all equipment that you sue and report any defects. Do not use faulty equipment.
- Frayed power cords
- Overloaded circuits
- Overheated equipment
- Improperly earthed equipment
AEROSOL CANS
Never burn aerosol cans. Never use an aerosol spray near open flames or cigarettes. The container may explode.
IN CASE OF FIRE
Be sure you know the organisation's Fire Emergency Procedures:
- Understand fire and evacuation procedures
- Know the location of all exits
- Know where the fire alarms and extinguishers are located
- Know emergency telephone numbers
IN CASE OF FIRE, REMEMBER
A.R.C.E.
ALARM
RESCUE/EVACUATE
CONTAIN
EXTINGUISH
SOUND THE ALARM
EVACUATE THE PREMISES AND RESCUE ANY PEOPLE IN IMMEDIATE DNAGER IF IT IS SAFE TO DO SO
CONTAIN THE FIRE BY CLOSIN DOORS AND WINDOWS
EXTINGUISH THE FIRE, IF POSSIBLE, USING THE CORRECT EXTINGUISHER"
10. In addition to entries in the Policy Manual, a document headed "Staff Policy and Useful Information", which was given to staff on their employment and a copy of which was kept in the individual employment files stated the following[1075]:-
"Fire safety - During orientation you will be shown fire extinguishers, break glass fire exits etc. Fire policy - In the unlikely event of fire the Staff Nurse on duty will take control. If instructed you are expected to move residents from any potential fire to place of safety. Fire Awareness training will be ongoing. Both Rosepark and Croftbank are equipped with sophisticated fire and smoke detection systems and are built with Residents safety in mind."
Care Plans
11. Each resident had a care plan. The function of the care plan was to describe the client's care needs, to give their personal details and to document any medical or para-medical visits[1076]. The care plans at Rosepark included inter alia a sheet recording the resident's preferences as regards various features of their life and their care[1077], a moving and handling assessment[1078], and an assessment of the resident's dependency[1079].
Smoking Policy
12. The only place where staff on the dayshifts were allowed to smoke was a smoking room in the staff room area on the lower ground floor. This was shown in Pro 881F[1080]. Nightshift staff were also permitted to smoke in the residents' smoking area off the Rose Lounge[1081]. Following the fire, evidence was found of smoking in the staff kitchen opposite the staff smoking room[1082]. Staff were not supposed to smoke there, but Ms Meaney could envisage that happening as staff were going off duty. If a member of staff were to be caught smoking in the residents' corridors they would be disciplined[1083].
13. There was a residents' smoking room off the day room and residents were only permitted to smoke in that room. A member of staff would take the resident into that room and observe him there[1084]. If a member of staff became aware of a resident smoking in his room (e.g. by smelling smoke or seeing evidence of smoking activity) the smoking materials would be taken away from that resident[1085].
CHAPTER 17 - FIRE SAFETY NOTICES
Introduction
1. There were a number of fire safety notices on the walls of Rosepark.
The Staff Fire Action Notice
2. Pro 656 was a staff fire action notice which was located in the foyer area at the time of the fire. It was in the following terms:-
"STAFF FIRE ACTION
IN THESE PREMISES THE FIRE WARNING IS GIVEN BY THE CONTINUOUS SOUNDING OF A SIREN
ON DISCOVERING A FIRE
(a) RAISE THE ALARM BY OPERATING THE NEAREST FIRE ALARM CALL POINT.
(b) TACKLE THE OUTBREAK WITH A FIRE EXTINGUISHER, BUT ONLY IF IT IS SAFE TO DO SO, OTHERWISE LEAVE THE BUILDING AND PROCEED TO THE ASSEMBLY POINT AT MAIN DOOR
ON HEARING A WARNING OF FIRE
(a) ALERT ALL PERSONS UNDER YOUR CHARGE - OR MAKE SURE THAT THEY HAVE BEEN ALERTED.
(b) ALL PERSONS SHOULD EVACUATE THE PREMISES QUICKLY BUT CALMLY BY THE NEAREST EXIT AND PROCEED TO THE ASSEMBLY POINT AT MAIN DOOR OR FRONT CAR PARK. DO NOT DELAY THE DEPARTURE BY COLLECTING COATS OR OTHER PERSONAL BELONGINGS.
(c) BEFORE LEAVING, CHECK CLOAKROOMS AND TOILETS TO ENSURE THAT ALL PERSONS HAVE LEFT THE PREMISES.
(d) CLOSE ALL DOORS OF ROOMS AND THOSE THROUGH WHICH YOU PASS ON LEAVING THE BUILDING.
(e) DO NOT USE LIFTS AS A MEANS OF ESCAPE.
(f) ENSURE THAT THE FIRE BRIGADE IS CALLED IMMEDIATELY YOU HEAR THE FIRE WARNING - DIAL 999 AND GIVE THE FULL POSTAL ADDRESS OF THE AFFECTED PREMISES WHEN CONNECTED WITH THE FIRE BRIGADE OPERATOR.
(g) DO NOT RE-ENTER THE BUILDING UNTIL A FIRE BRIGADE OFFICER HAS STATED THAT IT IS SAFE TO DO SO."
This was a pre-printed standard form notice, apart from the addition of the words "SIREN", "MAIN DOOR" and "MAIN DOOR OR FRONT CAR PARK'. Further copies of the same notice, without those additions, were on the wall in the staff room on the lower floor[1086].
"In the event of a fire"
3. Next to the fire alarm panel (with copies also in Matron's office and the staff room[1087]) was located a notice in the following terms[1088]:
"IN THE EVENT OF A FIRE
- PERSON IN CHARGE TO DIAL 999 - THEN CALL BOTH EMERGENCY CONTACTS NAMED ON KEY STAFF TELEPHONE LIST.
- RESPONSIBLE PERSON TO BE NAMED TO MEET FIRE CREWS ON ARRIVAL, IN ORDER TO PROVIDE THEM WITH ACCURATE INFORMATION AND SUPPORT - ON NIGHT DUTY, THE NAMED PERSON WOULD BE THE E.N.
- CLOSE ALL FIRE DOORS - IN ORDER TO PREVENT SPREAD OF FIRE
- EVACUATE RESIDENTS IMMEDIATELY INVOLVED NEAR THE FIRE AREA - THEN CONTINUE TO EVACUATE THE OTHERS SYSTEMATICALLY AND CALMLY.
- LEAVE ALL VALUABLES, BAGS, JACKETS, ETC., WHERE THEY ARE! DO NOT TAKE MATERIAL THINGS - SAVE YOURSELF AND THE RESIDENTS
- CHECK LIST - TO BE CALLED BY NAMED PERSON - TO ENSURE ALL RESIDENTS AND STAFF ARE SAFELY OUT OF THE BUILDING
- OFF-DUTY STAFF COMING IN TO HELP WITH EVACUATION - TICK NAME OFF ON CHECK LIST WHICH WILL BE ON MAIN OFFICE DOOR. IF YOUR NAME IS NOT ON LIST - ADD IT TO LIST SO THAT WE KNOW EXACTLY WHO IS IN THE BUILDING"
"Checklist for evacuation"
4. Also adjacent to the fire alarm panel (and on the walls in Matron's office and the staff room[1089]) was a notice in the following terms[1090]:
"PREVENTION OF FIRE - POINTS TO REMEMBER
CHECKLIST FOR EVACUATION
1. CHECK TELEPHONE NUMBERS OF STAFF NAMED ON THE FIRE LIST ARE CORRECT.
2. FIRE EXITS ARE UNOBSTRUCTED AND AVAILABLE.
3. FIRE ALARMS AND EMERGENCY LIGHTS ARE IN GOOD WORKING ORDER
4. FIRE FIGHTING EQUIPMENT AVAILABLE AND READY FOR USE -
BLACK FIRE EXTINGUISHERS FOR ELECTRICAL APPLIANCES ONLY
RED FIRE EXTINGUISHERS (WATER) FOR NON-ELECTRICAL MATERIALS.
5. ALL MEMBERS OF STAFF MUST KNOW -
o HOW TO RAISE THE ALARM
o HOW TO CALL THE EMERGENCY SERVICES IN CASE OF UNFORESEEN CIRCUMSTANCES
o KNOW WHERE THE FIRE ESCAPES ARE
o IF YOU FIND THE FIRE - LOOK TO SEE IF THERE IS SMOKE COMING FROM UNDER THE DOOR
o DO NOT ATTEMPT TO TOUCH THE HANDLE OF THE DOOR
o WITH THE BACK OF YOUR HAND - FEEL IF THE DOOR IS HOT - IF IT IS, DO NOT ENTER THE ROOM - IF THERE IS NO SMOKE AND THE DOOR IS NOT HOT - CHECK THE ROOM TO FIND THE CAUSE FOR THE ALARM
o DO NOT PUT YOURSELF AT RISK AT ANY TIME - TACKLE THE FIRE ONLY IF IT IS SAFE TO DO SO (IF IT IS SMALL AND YOU THINK YOU CAN MAINTAIN AND EXTINGUISH IT)
6. DO WHAT THE PERSON IN CHARGE DIRECT YOU TO DO SO AS TO ACT MORE QUICKLY
7. NO STORAGE OF ANY KIND TO BE LEFT ON STAIRCASES - NO FIRE ESCAPE DOORS BLOCKED AT ANY TIME
8. NIGHT STAFF MUST BE EXTREMELY VIGILANT - MAKE SURE FIRE DOORS ARE ALL CLOSED AND PLUGS ARE PULLED OUT
9. KITCHEN & LAUNDRY - SPECIAL ATTENTION TO MAKE SURE MACHINES AND EQUIPMENT ARE TURNED OFF AND PLUGS PULLED OUT
10. FOR EVACUATION OF NON-AMBULANT PERSONS WHEELCHAIRS SHOULD BE EASILY ACCESSED AT SPECIAL POINTS ON EACH FLOOR"
CHAPTER 18 (formerly 17A): FIRE SAFETY: ROLES AND RESPONSIBILITIES
Management
1. The partnership, as employers of the staff at Rosepark, had statutory duties as regards fire safety. In terms of the Health and Safety Policy of the Home at the time of the fire, Mr. and Mrs. Balmer were identified as the persons with overall responsibility for health and safety within the premises[1091]. In practice, Mr. Balmer was the person to whom any health and safety issues were referred[1092].
2. Within the partnership, Mr. Balmer was the individual who took responsibility for fire safety. He was the person responsible in the organization for fire policy[1093]. In practice, Mrs. Balmer and Alan Balmer did not have any role in relation to fire safety[1094].
3. Although Mr. Balmer accepted ultimate responsibility for the policies of the Home, he effectively left the formulation of policy generally to Matron. This was exemplified by the Fire Brigade Union strike. It was effectively left to the Matrons of the two homes to develop a plan to deal with that strike[1095].
Matron
Responsibility in terms of the Policy
4. In terms of the Health and Safety Policy, Matron had a responsibility (described as a "statutory duty") to communicate the health and safety policy to all employees lay with Matron[1096].
Ms Meaney's understanding of her role
5. Sadie Meaney had received no induction when she started work at Rosepark. When she was appointed Matron, Mr. and Mrs. Balmer had no discussion with her about what her responsiblities were to be. Specifically, she had never had a discussion with Mr. and Mrs. Balmer in which they had told her what her responsibilities were in relation to health and safety[1097].
6. She took the view that fire was not within her remit[1098]. She understood that Thomas Balmer was responsible for deciding what the fire policy was at Rosepark, and that he and Mr. Clark were responsible for matters of fire safety[1099]. They dealt with such matters as the fire alarm panel and fire extinguishers. Any concerns about fire would be taken to Mr. Balmer or to Mr. Clark[1100]. She would not have known how to activate the fire alarm system[1101].
7. Ms Meaney had responsibility for induction training and also for organizing training for existing staff in relation to various aspects of their work[1102]. She accepted that she gave staff "fire awareness" at induction. But her view was that "What I was expected to do as Matron is to give a fire induction, an awareness of fire, that's my remit, no more than that, as Matron". It would not have been practicable for her to take on fire training given all the other matters she had to deal with. If there was to be any follow up training, Mr. Balmer would have had to arrange that[1103]. Ms Meaney did not consider that it was part of her remit to organise fire drills. So far as she was concerned it was Mr. Balmer's job to make sure that fire drills were carried out[1104].
8. Page 6 of Pro 311 was headed "Fire Policy" and identified Mr. Balmer as the responsible person and Matron as the "person responsible for implementing policy". This appeared in a collection of apparently superseded documents from a filing cabinet in Mr. Balmer's office. It did not appear in the Policy Manual, Pro 259[1105]. At the time of the anticipated Fire Brigade strike, Mr. Balmer had shown this document to Ms Meaney and asked her to get something together. She had not previously seen it. She was surprised to see herself described as the person responsible for implementing fire policy: she had never been told that she had such a responsiblity[1106]. The document specified testing procedures for the fire alarm system which, so far as she was concerned, were Mr. Balmer's responsibility and which he had delegated to Mr. Clark[1107].
Mr. Balmer's evidence about Matron's role
9. Mr. Balmer, on the other hand, appears to have taken the view that Matron had a wider responsibility for fire safety matters, including:
9.1. Responsibility for all training and drills[1108].
9.2. Responsibility for making sure that there was a regime in place for fire alarm testing and fire extinguisher checks[1109].
9.3. Indeed, he appeared to take the view that it was Matron's responsibility to carry out a suitable and sufficient fire risk assessment.
And faced with the prospect of a Fire Brigade Union strike, he effectively left it to the two Matrons to decide what to do.
Mrs. Boyle
10. Mrs. Boyle, the previous Matron, when asked who was responsible for fire safety, stated that this was Mr. Balmer and Mr. Clark. However she stated that she had responsibility for training and for making sure there was a regular check on the fire alarm system, although she also said that Mr. Balmer and Mr. Clark were responsible for this[1110].
Observations
11. Ms Meaney's view of matters was consistent with certain other features of the history and management of the Home.
11.1. Mr. Balmer was responsible for the building and its systems. He entered into maintenance contracts. Mr. Clark answered to Mr. Balmer in respect of matters of maintenance.
11.2. Mr. Balmer had, when the Home opened, carried out fire alarm testing himself. He later delegated this task to Mr. Clark.
11.3. Mr. Balmer had, as a matter of history, personally arranged for the lectures from Mr. McNeilly.
11.4. Mr. Balmer took the lead in introducing the Fire Safety Video to the staff.
12. The issue is not necessarily who was right as an abstract matter. What is of potential significance is that, at best, there was serious confusion as to the demarcation of responsibility for addressing issues to do with fire safety.
13. If management did, in fact, wish Ms Meaney to take responsibility for matters of fire safety, it would have been necessary to address: (a) her competence to undertake that task; and (b) providing her with the training and resources to fulfil it.
Staff Nurses
14. Amongst the responsibilities of staff nurses was the following: "To ensure a sound knowledge of the fire procedure, position of fire extinguishers and break glass points"[1111]. In addition, the nurse in charge of a shift had particular responsibilities in the context of fire safety[1112]. She was expected to take charge of the situation[1113]. In terms of the fire procedure, she had to appoint staff to go and investigate the relevant area, and if a fire was reported, to appoint someone to phone 999 and to send other staff to the area[1114]. The position of nurse in charge on the nightshift has particular challenges, because the daytime support network is not available[1115].
15. Ms Queen appears to have understood that responsibility rested with everybody in the building. That was a serious misunderstanding of her role as nurse in charge[1116].
Joe Clark
16. Mr. Clark had been given specific responsibility for carrying out fire alarm tests[1117] and, more generally, undertook maintenance of the fire alarm system.
17. Mr. Balmer had trained Mr. Clark in the operation of the alarm panel at the time when he asked him to take on the weekly tests[1118].
18. In practice, Mr. Clark had come to be regarded as the person to whom nursing staff would turn for guidance in relation to the operation of the fire alarm system.
18.1. He typically led the discussion following fire drills.
18.2. He was the person to whom staff nurses would turn if they were unsure what to do in response to a fire alarm. This was exemplified by the incident involving the false alarm in December 2003: see later.
19. It was inappropriate that he should have come to have this informal role.
19.1. He had no qualification or expertise in fire safety.
19.2. He had an inadequate grasp of key issues relating to the fire alarm system. Even after the fire, there is evidence that he tried to reset the system at Croftbank before the fire service arrived[1119].
20. Management appear to have delegated responsibilities to Mr. Clark in respect of the fire alarm system without adequately clarifying what he was to do. Mr. Balmer assumed that Mr. Clark would keep a record of false alarms, but did not give Mr. Clark an instruction to that effect. Nor did he himself check whether such a record was being kept[1120].
Staff generally
21. Staff other than the nurse in charge were expected, in an emergency, to act under the instructions of the nurse in charge.
22. The fire policy documentation in the Manual envisaged that any member of staff might require to engage in emergency fire-fighting activities.
CHAPTER 19 (formerly 18) - THE EMERGENCY PLAN
Actions to be followed in the event of the fire alarm sounding
1. The procedure which was to be followed in the event of the fire alarm sounding at Rosepark was as follows[1121]:
(1) Staff were to gather at the fire alarm panel.
(2) The staff nurse on duty would take charge.
(3) The nurse in charge would send two people to the zone indicated on the fire alarm.
(4) One of those would come back to report whether or not it was a fire or a false alarm.
(5) If there was a fire, the other person would immediately start evacuating from that area into the next zone; the staff nurse would nominate someone to phone the Fire Brigade, before sending others to assist.
2. The panel should not be reset until the zone had been entirely checked. Alan Balmer's view was that the alarm should not be silenced until that point either[1122].
3. This procedure applied both to dayshift and to nightshift[1123].
4. The procedure also applied irrespective of the location of the alarm. In particular, it applied to alarm indications in the attic[1124]. However, Alan Balmer stated that, in the event of an alarm indication in the attic, he would expect staff to check the LED indicators in the corridor, and, if they found an indicator activated, to phone the Fire Brigade straight away at that point. If there was no such indication, the nurse in charge would have to decide whether or not to phone the Fire Brigade straight away or to investigate further within the attic area[1125].
5. Thomas Balmer repeatedly expressed a rider to the procedure to the effect that:
"particularly in the evening, on night shift, when the numbers were reduced, if any staff nurse had concern or suspicion at all, dial 999, don't necessarily go to the zone. If she had a concern, immediately dial 999 but she would still have to send someone to that area to determine if, indeed, it was an incident, because the fire brigade would require that information on arrival to the home"[1126].
Likewise, Mrs. Balmer stated[1127]:
"any talks they were always told to use their own initiative. If they were wary or couldn't find it, to dial 999 right away."
As to this:-
5.1. The staff did not speak to any such qualification.
5.2. The scope of this rider, as it was expressed by Mr. Balmer, was unclear When he first spoke to it, he stated that this was "further instructions to night staff"[1128]. Later, he said "it's always been the case, whether, no matter the time of day"[1129]. Later again, he said that the caveat applied "particularly in the evening, on night shift"[1130].
5.3. Mr. Balmer agreed with the proposition "that the message that your staff were given was that you check to see if it was a false alarm before phoning the Fire Brigade"[1131].
Documentation
6. This procedure was not written down anywhere at Rosepark[1132].
6.1. There was no document in the Policy Manual which recorded it[1133].
6.2. Thomas Balmer could not recall any document which set out the procedure[1134].
6.3. Alan Balmer had never seen a document at Rosepark which set out the procedure[1135].
6.4. Ms Meaney stated that she had never seen it written down[1136].
7. The document in the Policy Manual, and Pro 334H, each of which started "In the event of fire ..." were directed specifically to a situation where there was in fact a fire[1137]. They therefore were incomplete statements of the emergency procedure to be followed at Rosepark, inasmuch as they did not set out the procedure to be followed in the event of a fire alarm.
8. The procedure was directly inconsistent with the procedure prescribed in the Staff Fire Notice Pro 656[1138], which stated
"ON HEARING A WARNING OF FIRE
...
(f) ENSURE THAT THE FIRE BRIGADE IS CALLED IMMEDIATELY YOU HEAR THE FIRE WARNING - DIAL 999 AND GIVE THE FULL POSTAL ADDRESS OF THE AFFECTED PREMISES WHCN CONNECTED WITH THE FIRE BRIGADE OPERATOR"
Mr. Balmer expected staff to ignore that Staff Fire Notice[1139].
9. The procedure was also different from the procedure advised in the training video which was used at Rosepark[1140].
10. It was also inconsistent with two documents which were found loose within the Fire Register, Pro 27.
10.1. One appeared to be the wording of a fire notice apt for use in a care home and which stated inter ali: 'When the fire alarm sounds: 1 Close all doors and windows in the area. 2. Ensure Fire Brigade has been called. ..."[1141].
10.2. The other was headed "Fire Instructions - In Case of Fire" and stated inter alia "The senior person present is responsible for ... ensuring that the Fire Brigade is called immediately on the sounding of the alarm"[1142].
Actions in the event of fire
11. The actions to be followed in the event of fire were set out in Pro 334H and (in slightly different terms) in the Policy Manual.
(1) The person in charge was to dial 999 and emergency contacts.
(2) A responsible person was to be named to meet the fire crews on arrival. On night duty this was to be the EN.
(3) All fire doors were to be closed to prevent the spread of the fire. Given that the cross corridor fire doors should have closed in any event, this may reasonably be understood to refer to bedroom doors[1143].
(4) Residents immediately involved near the fire area were to be evacuated.
12. Notwithstanding the terms of Pro 334H:-
12.1. The nurse in charge might in fact nominate someone else to make the phone call to the Fire Brigade and to call in other members of staff[1144].
12.2. The person nominated to meet the fire crews would not necessarily be the Enrolled Nurse[1145].
12.3. The individual who had been left at the area would be expected to consider whether or not to engage in emergency fire-fighting[1146]. This was mentioned in Pro 334I. It was also stated at p. 25 of the Policy Manual: "Extinguish the Fire, If Possible, Using the Correct Extinguisher".
Staff understanding
13. The basic elements of the procedure outlined at paragraph 1 above were reasonably well understood by senior staff at least on the dayshift[1147]. In particular, they understood that the Fire Brigade would only be called if a fire was actually found[1148]. Staff on the nightshift were noticeably less confident about the procedure. Most of them understood the fundamental point that on the fire alarm sounding, the area would be investigated and if there was fire, the Fire Brigade called[1149], but some had never had any training in the fire procedure[1150] and, relying on her own experience, Flora Davidson would have phoned the fire brigade immediately[1151].
14. There was, however, considerable doubt apparent in the evidence of staff in relation to the action to be taken in the event that the staff who had been sent to the zone did not find a fire.
14.1. Eleanor Ward stated that she did not know what she would have done in that circumstance[1152].
14.2. Allison Cumming stated that, in that event, the nurse in charge would probably go and check and would probably then phone Joe Clark to reset the alarm[1153]. The Fire Brigade would not be called if no fire had been located[1154].
14.3. Isobel Queen likewise stated that she would phone Joe Clark[1155], and this was exemplified by her actions in relation to a false alarm in December 2003 (see below).
14.4. Patricia Taylor stated that in the first instance she would send the staff back to look more carefully, and if they still could not find anything, she would go and investigate herself. If she could not find anything she would report it to Matron or the Balmers[1156].
14.5. Phyllis West, by contrast, said that if the member of staff came back and said she could not locate the fire, she would call the Fire Brigade, although she acknowledged that this was not the procedure at the time[1157] and she was unsure whether or not she would start an evacuation in that circumstance[1158].
15. Staff who were on duty at the time of the fire had varied knowledge of the procedure:
15.1. Isobel Queen claimed that she had never been told what the Home's policy was in relation to what should happen if the fire alarm sounded[1159]. However, when asked what she would do, she recounted the basics of the fire procedure followed at the Home (with the exception that she stated that she herself would go and investigate the area)[1160]. And there was evidence in the way Question 10 of her questionnaire had been answered from which one could properly infer that she was at the time of her induction told to check if it was a false alarm: see further below.
15.2. Brian Norton had not been told what the procedure on hearing the alarm was.
15.3. Yvonne Carlyle stated that what should happen would be under instruction from the nurse on duty. She would expect that they should check the home for any visible signs of fire. If there were visible signs of a fire she would expect the nurse to phone the Fire Brigade. If they couldn't find visible signs of fire, she would expect the nurse to reset the alarm[1161].
15.4. Irene Richmond put it succinctly[1162]:
"My understanding was that you checked to see if it was a fire; if there was a fire you phoned the Fire Brigade; if there wasn't a fire, well, obviously you carried about your duties".
Origin of the policy
16. The procedure to be followed in the event of the fire alarm sounding set out above had been the procedure ever since the Home had opened[1163].
17. The origin of the procedure was obscure.
17.1. Thomas Balmer attributed the policy to the original Matron, Ms Mackie[1164]. However, he came to this only after his initial assertion that the policy had been formulated on the basis from Mr. McNeilly[1165] had been challenged under reference to the evidence about the dates of Mr. McNeilly's lectures. It would not be safe to rely on that evidence.
17.2. Anne Balmer attributed the procedure to Mr. McNeilly - or at least to `'the fire officer involved"[1166]. She recalled that person giving a lecture before the Home opened where the procedure was outlined as the one to be followed[1167]. The advice as she recalled it was perhaps a little less definite: "I think the way the fire officer put it was that he didn't say not to phone the fire service right away. He said ... I can't remember how he put it. Maybe it was best to check first, or ... I don't know. I can't remember his actual words ..."[1168]. Mr. McNeilly's evidence was, however, that his advice would always be to phone the Fire Service if the fire alarm sounded, even if there were a suspicion that it might be a false alarm[1169].
17.3. Mr. Clark thought that Mr. McNeilly had mentioned that this was the procedure to follow, but was not 100% sure[1170].
17.4. One possibility is that the procedure was introduced following a training session with Mr. Fothringham of Comtec.
17.4.1. Mr. Fothringham came in before the Home first received residents and did a training session which would have been attended by Mrs. Mackie, the Matron at the time[1171].
17.4.2. Had Mr. Fothringham been asked in the course of such a training session what staff should do if the fire alarm sounded, he would have outlined the procedure set out above.
18. The Balmers believed that the policy had been approved by the Fire Service. The essential basis for this belief would appear to be that that Mr. McNeilly had given lectures at Rosepark on three occasions, and that other fire officers had given lectures at Croftbank in 1996 and 1997 and that no issue had been raised about the procedure to be followed[1172]. But there was no satisfactory evidence that Mr. McNeilly knew that the procedure which had been adopted at the Home was as stated above. In the course of two passages of evidence on this subject Mr. Balmer stated: (a) that he had a specific memory of Mr. McNeilly being told the procedure[1173]; (b) that he had no specific memory of that[1174]; (c) that his memory was that they did recount the fire actions[1175]; and (d) that there was no discussion with Mr. McNeilly about the issue of whether or not staff should phone 999 immediately on hearing the fire alarm[1176]. Likewise, there was no satisfactory evidence that the fire officers who gave lectures at Croftbank were aware of the procedure. Alan Balmer did not attend those lectures. He concluded that those officers had approved the procedure on the basis that no one had raised any adverse comment about it with him following the lectures[1177].
19. It is not, for the purposes of making the statutory determinations, necessary to resolve these issues.
19.1. It is the Crown's contention that, irrespective of the source of the procedure, it would have been a reasonable precaution for the Fire Brigade to have been contacted immediately in the event that the fire alarm sounded at night.
19.2. It is, further, the Crown's contention that the system of fire safety management at Rosepark Care Home before the fire in January 2004 was seriously deficient. Among the deficiencies were the following:-
19.2.1. Failure to have this part of the emergency plan recorded in writing.
19.2.2. Failure to review this part of the emergency plan critically in light of the advice given on the fire safety video adopted in 1999, the Fire Brigade Union strike, or the false alarm in December 2003.
19.2.3. Failure to undertake a suitable and sufficient risk assessment, in which the adequacy or otherwise of this procedure would have fallen to be addressed.
These propositions are valid, whatever the origin, as a matter of history, of the procedure.
CHAPTER 20 (formerly 19) - FIRE TRAINING AND FIRE DRILLS
Fire training
General observations
1. The purposes of fire safety training in the context of a care home include the following:-
1.1. To disseminate to the staff what the Homes' procedures are in the event of an emergency.
1.2. To make sure that staff are confident and can follow the required actions almost without thinking[1178].
1.3. To equip staff to act effectively in an emergency[1179].
1.4. To equip staff to undertake emergency fire-fighting[1180].
2. It is particularly important in a care home that staff are well-trained. In an office building, even if no-one tackles the fire successfully, the chances are that the occupants will evacuate themselves on hearing the fire alarm. In the context of a care home, there is a premium on effective first-aid fire-fighting, and effective action to safeguards residents[1181].
3. In order to equip staff to act effectively in an emergency, it is necessary that there should be:
3.1. Induction training; and
3.2. Regular refresher training[1182].
4. Staff need to understand how quickly a fire can develop - and that, accordingly, they will not have time to take advice to seek instructions[1183].
5. Management requires to communicate to staff that fire safety training is important and is not just a box to be ticked[1184].
The opening of the Home
1. Production 27 (the Fire Register) records a fire lecture on 11 February 1992, before the Home opened, and a further fire lecture on 28 February 1992.
2. Mr. and Mrs. Balmer both gave evidence that at least one of these lectures was given by Mr. McNeilly[1185]. However:
2.1. Mr. Balmer recalled that Mr. McNeilly gave three lectures. There are indeed records of Mr. McNeilly giving three lectures, in November 1992, January 1993 and July 1995: see below.
2.2. It may be inferred from the terms of a letter dated 13 July 1992 in which Mr. Balmer sought a fire service lecture (see below) that Mr. McNeilly had not given a lecture to staff before the date of this letter[1186].
2.3. Mr. Balmer's final position was that these lectures were probably given by Mrs. Mackie, the Matron at the time[1187].
3. Mr. Fothringham of Comtec led a training session before the Home first took in residents[1188].
Talks by professional fire officers
4. On 13 July 1992 Thomas Balmer wrote to the Divisional Commander of Strathclyde Fire Brigade in the following terms[1189]:
"Our staff complement has now reached optimum level and I feel that the time is now opportune for a professional fire lecture to our staff.
Fire Officer Thomas McNeilly, who carried out inspection of the above premises prior to Health Board registration advised me to write to you for this purpose. I would be grateful if you could arrange this at your earliest convenience".
5. Mr. McNeilly attended at Rosepark and gave a talk on 19 November 1992[1190]. This talk was attended by about 20 out of the 40-50 staff at the Home at that time[1191]. Mr. and Mrs. Balmer attended[1192]. Mr. McNeilly showed a video which showed a TV going on fire and the time taken for the flames to spread within the room. Mr. Balmer was shocked at the speed with which the flame and smoke travelled. Mr. McNeilly explained the uses of fire extinguishers and took staff through the building explaining various relevant features[1193]. This was the first lecture which Mr. McNeilly had given at Rosepark[1194].
6. On 30 November 1992, Mr. Balmer wrote to Mr. McNeilly in the following terms[1195]:
"Thanks you for taking time and giving us the benefit of your professional experience in the prevention of fire. The staff found the talk very informative and reassuring in that Rosepark appears to be adequately protected in the event of fire.
A return visit to cover night shift would be appreciated on 14th January at 3 pm if that is suitable to you."
7. On 14 January 1993 Mr. McNeilly attended at Rosepark and gave a fire lecture[1196] to about 16 members of staff, a mixture of night and day staff[1197]. Mr. and Mrs. Balmer did not attend this lecture[1198].
8. On 21 January 1993 Mr. Balmer wrote to Mr. McNeilly in the following terms[1199]:
"Thank you once again for coming along and giving another fire talk to the remaining staff at Rosepark. The staff enjoyed the talk very much and now feel more aware and confident."
9. On 11 November 1994, Mr. Balmer wrote to the Divisional Commander in the following terms[1200]:
"Dear Sir
Fire Safety
In recognition of our lawful requirements, and in tandem with our ongoing policy on fire safety within Rosepark, I enquire as to the possibility of having a professional fire prevention officer speaking to our staff on this very important subject.
To cover all staff it may need to be two sessions which, of course, would be mutually arranged. Since our last talk there has been some staff movement, and we feel this professional input is essential, and something we would hope to organize on, perhaps, an annual basis. We will of course take your advice on this matter."
10. On 28 July 1995 Mr. McNeilly gave a fire lecture at Rosepark to about 15 members of staff[1201]. Mr. and Mrs Balmer did not attend this lecture[1202]. The sign up sheet for this lecture stated[1203]:
"Each member of staff must attend a fire lecture yearly. One other lecture will be arranged for an evening."
11. After this lecture, there were, in fact, no further fire lectures from members of the Fire Service at Rosepark[1204], although such input from the Fire Service was arranged for staff at Croftbank after it opened[1205].
12. Mr. Balmer took no steps to organize such input on an annual basis[1206]. He claimed that he had spoken to Ms Meaney about this. The passage is in the following terms[1207]:-
"SHERIFF PRINCIPAL LOCKHART. ... He then asked you did you take any such steps after this date?
THE WITNESS: Other than speaking to Matron about it, no.
Examiniation in chief by MR WOLFFE (continued): Well you say other than speaking to Matron about it, did you speak to Matron about organising annual lectures for staff? - My main memory is that is, that is the case.
SHERIFF PRINCIPAL LOCKHART: Just a minute ... That you recall ... Did you speak to Matron about organizing annual lectures of staff? "My memory ..."
THE WITNESS: In discussion that would, that would be one of the topics we would discuss, yes
...
Examination in chief by MR WOLFFE (continued): Are you telling me that you told Matron that she should be organizing annual fire lectures for the staff? - No I'm not saying that. But in general discussion, of which we had general discussions that, it would be undoubtedly mentioned at one point in time."
13. It is plain from the concluding question and answer that no instruction was given to Matron to organize annual lectures. Indeed, Ms Meaney's evidence was that she had raised with Mr. Balmer the question of having additional training in fire safety and that his reply had been that firemen used to come in, but that they had stopped providing that service[1208].
The video
14. The Home acquired a fire safety video in response to a sales flyer introducing the product[1209].
15. The video was specific to a care home setting. Among other passages in the advice given in the video were the following:-
"Sync: (Presenter at Fire Door) I know fire doors can be a nuisance and if you've got the fancy ones that close automatically when the alarm goes you'll often wonder why they need to be closed at night. But the rule is closed after 11 p.m. so closed they must be. Anyway you'll see why later and why residents' room doors should be closed.[1210]
...
Sync: (Presenter outside resident's room)
...
Anyway while I continue my round here's a quick recap on everything I've told you so far with a few other housekeeping tips on fire prevention. See you later.
VO: (Summary Sequence)
...
Ensure fire doors are closed after 11 p.m.
...
Make sure linen and other potentially flammable materials are stored away from heat sources in locked cupboards.
...
Sync: (Presenter in office) Ah, you're back. So if we all get the fire prevention side of things right there'll be less chance of a fire starting in the first place. But even so we still need to be prepared just in case. Now we all work in different sorts of buildings, some small, some large, some modern purpose built, others older converted properties. You may work mainly with able-bodied people or those not so mobile, The interesting thing is that wherever you work the same basic principles on how to handle an emergency involving fire still apply.
...
Even so there's plenty you can do. The most important thing is to know your home's emergency plan and your role in that plan.
VO: (Staff respond to alarm) If the alarm sounds the zone panel will light up identifying the location of the trouble. Some alarms especially in larger homes are linked directly to the fire brigade. Sill its someone's job when the alarm goes to telephone the fire brigade. If it's yours, do it, and do it every time. Don't assume it's a false alarm. It may well be, but you can never be sure. Stay calm and give the information asked for. If it's not your role to make the call go to the area indicated on the panel and if you can, start to move people to a safe area.
Sync: (Presenter in office) Now establishments like ours are divided into what are called fire zones. The idea works like this.
VO: (Animated graphics) A zone is a number of rooms or an area between two fire doors. If a fire starts it can be contained in this zone for up to 30 minutes or more. So to start with you only need to evacuate the people in this zone to the next one to keep them safe.
Sync: (Presenter in office) Of course if there's a fire evacuation may not be that simple. First you need to identify where the fire is and which rooms are safe to enter.
VO (Care worker checks before entering room) If there's any sign of smoke coming under a door or the door handle is hot, don't enter.
Sync: (Presenter outside bedroom) If the door handle is hot then the room is probably well ablaze and you'll be allowing the fire and smoke to escape. See why it's important to keep bedroom doors closed all the time? ...
VO: (Animated graphic) If you can identify where the fire is, move those nearest to it first. Move them into the next safe zone without passing the source of the fire.
...
Sync: (Presenter) let's just recap on what to do in an emergency
VO: (Summary sequence) Know your role. Is it your job to call the fire brigade?
...
Know your fire zones.
... "
The video then contained a demonstration of the use of a fire extinguisher and description of the different types of fire extinguishers.
Sync: (Presenter leaving work) So prevention is the main priority right? Let's make sure a fire doesn't start in the first place. But if it does ensure you know what to do. Find out your home's emergency plan and your role in that plan.
Make it your job to know the fire zones, escape routes and emergency exits. Find out where alarm points and extinguishers are and how they work. In an emergency speed is the main priority. Act quickly but don't endanger yourself trying to help others.
So why don't you do what I do now, and put fire safety first."
16. Mr. Balmer took the video home to watch it personally. He considered that it was appropriate and, indeed, a big improvement on the previous video they had used, in that it was specific to a care home setting[1211]. It was then viewed at the Home by Mr. and Mrs. Balmer and Matron[1212]. They decided to implement it[1213].
17. On viewing the video:-
17.1. Mr. Balmer recognized that the advice "Still it's someone's job when that fire alarm goes to telephone the fire brigade. If it's yours, do it and do it every time. Don't assume it's a false alarm" was different from the practice at Rosepark[1214].
17.2. He did not apply his mind to the question of whether the procedure followed at Rosepark should be changed in light of the advice on the video[1215].
17.3. He did not consider taking further advice on the question of the appropriate procedure to be followed, for example from Strathclyde Fire Brigade[1216].
17.4. He did not consider whether it would desirable to link the fire alarm system directly to the Fire Service[1217].
18. At some point, Alan Balmer also viewed the video, which was also used at Croftbank[1218]. He could not recall whether the discrepancy between the procedure followed at Croftbank and the procedure outlined on the video had struck him at the time, but assumed that his reaction would have been that it was a generic video rather than one customized to their Care Homes[1219]. The question of the procedures was not discussed amongst the partners following purchase of the video[1220].
The questionnaire
19. The video came in a pack with a multiple choice questionnaire, which was to be completed by staff after they had viewed the video[1221]. There was also an answer sheet, which set out the correct answers[1222].
20. Question 4 on the questionnaire was in the following terms:
"Regulations require that fire doors should be closed for the night at: (A) 9.00 pm; (B) 10.00 pm; (C) 11.00 pm; (D) Midnight."
The correct answer was (C). Matron explained that this question did not really apply in the context of Rosepark because the doors were held open on magnetic catches: if they had been ordinary fire doors they would have had to be closed[1223].
21. Question 9 on the questionnaire was in the following terms:
"You open the linen cupboard and find a small fire in some of the bed linen placed in the cupboard earlier that day and the first thing to do is: (A) Close the door and raise the alarm; (B) Remove any linen that hasn't yet been damaged by fire; (C) Fetch a red fire extingusher; (D) Start to evacuate the less able bodied of the home's residents."
22. Question 10 on the questionnaire was in the following terms:
"You are in charge of the home late at night when the fire alarm goes off. The first thing to do is: (A) Ensure that the whole building is evacuated as quickly as possible; (B) Check to see if it is a false alarm; (C) Tell all residents and staff to collect up their valuables; (D) Ensure that the fire brigade are called."
23. The correct answer to this question, in terms of what was said on the video itself and on the answer sheet with the video[1224], was (D). However, the answer, if the questionnaire were to be completed in terms of the policy of the home, would have been (B). The answer sheet provided with the video made clear that the correct answer was (D).
24. Mr. Balmer stated that he personally would have ticked (B), to reflect the practice and procedure in place at the Home. He would be quite content if his staff ticked (B) because that was the practice within the Home. He would possibly have expected new staff who were shown the video also to tick (B) on the basis of the fire policy as it would have been described to them by the person carrying out the induction[1225]. By contrast, Alan Balmer stated that he would expect staff to tick (D) because that was the instruction in the video[1226]. Ms Meaney initially stated that she would want to see answer (B) because that was the procedure at the Home[1227], but later that it would not surprise her if staff in fact answered (D) because that was what was on the video[1228].
Meetings to introduce the video
25. On 18 and 23 November 1999, meetings were held at which the video was introduced to the staff. Mr. Balmer called and led the meeting on 18 November 1999[1229]. It is unclear whether or not he was at the meeting on 23 November 1999 although he thought it likely that he was[1230].
18 November 1999 meeting
26. This meeting was attended by 19 members of staff[1231], including the Matron Sadie Meaney, Eleanor Ward (who was, by the time of the fire, nightshift sister), Patricia Taylor (who was, by the time of the fire, a dayshift sister, and who was the member of the staff who gave Isobel Queen her induction), and Irene Richmond[1232].
27. After some introductory remarks by Mr. Balmer, the video was shown. The questionnaires were then handed out for staff to complete. Everyone filled in the answers and Mr. Balmer started to read out the answers from the answer sheet[1233]. Staff started joining in[1234]. There was a discussion, in the course of which, certain members of the nightshift staff pointed out that the video stated that as soon as the alarm sounded the fire brigade should be called. The outcome of this discussion was a re-affirmation of the procedure that the fire brigade should only be called if a fire was found[1235]. Mr. Balmer himself stated that staff were to check if there was a false alarm before phoning the Fire Brigade, and this was the clear message that staff were left with[1236]. Although Mr. Balmer stated that this was the consensus view or "collective decision"[1237], he accepted that ultimately it was his decision to re-affirm the practice that had been in place previously[1238] and staff recalled him telling them to check to see if it was a false alarm[1239].
28. Consistently with this discussion, questionnaires of staff who attended this meeting disclose, in relation to question 10:-
28.1. Both (B) and (D) ticked, but (D) crossed out (Eleanor Ward; Irene Richmond; Anne Daly[1240]; Margaret McCondichie; Linda Anderson)[1241]. Eleanor Ward changed her answer after a discussion during which Mr. Balmer told them to check and see if it was a false alarm[1242].
28.2. Both (B) and (D) ticked (Patricia Taylor; Margaret McCurdie)[1243].
28.3. Only (B) ticked (Sadie Meaney; Anne Marie Ward; Jacqueline Higgins)[1244]
29. Mr. Balmer claimed that there had also been a discussion about the closing of bedroom doors. His specific recollection appeared to relate to the advice in the video concerning identifying whether a door was hot. He claimed, however, to recall a discussion about the need to close doors, the outcome of which that the staff nurse on duty has the call, but to ensure at quieter times that the door was closed[1245].
30. At the end of the meeting, Mr. Balmer collected the questionnaires and took them away to check them[1246]. The next day he brought them to Matron and told her to put them in the staff files. A few days after that he brought the video and questionnaires to her and told her to show it to any new staff who came[1247].
23r November 1999 meeting
31. This meeting was attended by thirteen members of staff[1248]. Ms Meaney did not attend this meeting[1249], but Mr. Balmer did[1250].
32. Questionnaires from six members of staff who were at that meeting all answered (D) to question 10[1251].
Training arrangements after the introduction of the video and up to the time of the fire
Induction
33. New members of staff were given an induction over the first three months of employment, covering various matters, including fire safety. The fire safety component did not differ as between nurses and carers. There were three elements to the induction[1252].
33.1. The new member of staff was shown the video in the day room and required to complete the questionnaire.
33.2. The new member of staff was shown the layout of the building, the fire exits, the extinguishers and the fire panel.
33.3. The new member of staff would be told what to do if there was a fire - i.e. the Rosepark policy as to what to do when the fire alarm went off.
34. Mr. Balmer expected that the member of staff undertaking the induction would tell the new member of staff about the fire procedure which was in fact to be followed at the Home. He did not issue any instruction to Matron or others that they were to so instruct new members of staff[1253].
35. Ms Meaney would delegate the task of inducting new members of staff to other senior nurses. Her expectation was that the nurse undertaking the induction would stay in the day room with the new member of staff, unless she were to be called away to deal with something else. She thought the questionnaire was given out after the video. She expected the nurse carrying out the induction to go through the questionnaire with the new member of staff after it had been completed[1254].
36. In practice, staff nurses to whom the task was delegated would leave new members of staff in the day room to watch the video and complete the questionnaire on their own[1255]. If the new member of staff was a carer, rather than being told the full procedure, she might be told simply to go to the panel and do what the person in charge instructs[1256]. In relation to Question 16, Phyllis West (who was one of the members of staff who undertook inductions) would have expected staff to answer (D), although she recognized that this was not the procedure followed at Rosepark[1257].
37. The nurse to whom the task had been delegated would bring the questionnaire to Matron's office. The new member of staff would not come to her office at that time. Matron would file the questionnaire, and, once the three month induction had been completed, transfer it to the individual staff member's file. A brief evaluation would be recorded in somewhat formulaic terms[1258]. Ms Meaney would not herself correct the questionnaires of staff who had been given them by one of her senior colleagues[1259].
Refresher training
38. Apart from the training which staff received at their induction, there was no other organized fire safety training for staff at Rosepark[1260]. After induction, no further fire awareness training was provided to that member of staff[1261]. Apart from a meeting to discuss the Fire Brigade strike, there were no staff meetings at which there was any significant discussion of fire safety[1262]. No one ever suggested to Matron that staff should be receiving periodic fire instruction[1263].
39. The only additional fire safety training during this period was the exercise which was undertaken in anticipation of the Fire Brigade Union strike when various fire safety points were reinforced and discussed at a meeting[1264].
40. Mr. Balmer stated "Staff were expected and allowed to go off the floor during their working day .. to visit this video ... and peruse it at ... prescribed times"[1265]. He claimed that he would frequently find groups of staff in the dayroom perusing the video - sometimes a mixture of new staff and existing staff, and sometimes just existing staff[1266]. There is no other evidence to support this practice and this evidence should be rejected except insofar as it indicates what management expected should be happening.
41. Matron stated that the video was available for anyone that wanted to watch it "if they wanted a refresher"[1267].
SVQ courses
42. Rosepark encouraged care staff to undertake SVQ courses. Management and Matron did not understand these to have any in depth fire training content[1268]. This was borne out by the evidence of Maureen King[1269].
Training in the operation of the fire alarm panel
43. Training in the operation of the fire alarm panel was patchy. Eleanor Ward, the nightshift sister, who had been on the staff since 1997, had never had the operation of the panel explained to her[1270]. Flora Davidson, a part-time nightshift staff nurse could not remember receiving any instruction in how the panel operated and when she was the nurse in charge did not know how it operated[1271].
Training in evacuation techniques
44. During the time when Ms Meaney was Matron, the staff never undertook physical exercises to give them experience of what would be involved in an evacuation[1272]. Ms Meaney never took staff to a particular area for a discussion about how, in a practical sense, an evacuation would be carried out[1273].
Training in the use of fire extinguishers
45. No arrangements were made before the fire in January 2004 to give staff at Rosepark a chance to practice using a fire extinguisher[1274].
"Ongoing" fire training
46. A Staff Policy and Useful Information document given to staff on their employment and a copy of which was kept in the individual files stated inter alia; "Fire Awareness training will be ongoing"[1275]. The pre-inspection return to the Care Commission dated 12 January 2004 likewise used the word "ongoing". Ms Meaney explained that in relation to fire training this was "ongoing" in the sense that senior nurses would be making sure that staff did what they were told, for example when the fire alarm sounded[1276]. There was some evidence that a senior nurse might go over fire safety matters with staff from time to time[1277].
47. Mr. Balmer stated: "My memory is that we did have annual, ehm, awareness sessions"[1278]. On being pressed about this, he stated that he had never attended any such session and resorted ultimately to saying "Care Managers and Matron would organize ... fire training within that remit, and if I was requested to be there I would be there"[1279]. No other witness spoke to such sessions taking place and the suggestion that they did should be rejected.
Training of bank nurses
48. Ms Meaney thought that bank staff would not necessarily get the full induction, though they should be shown the layout of the building, the fire exits, extinguishers and panel[1280]. Ms Meaney thought that they would be told the fire procedure[1281].
48.1. Alexis Coster, a bank nurse who was on occasion the nurse in charge, had never been given any training or induction in relation to the operation of the alarm system or as to the procedure to be followed if the fire alarm went[1282].
48.2. Catherine Melia, another bank nurse who was on occasion the nurse in charge, was shown how to operate the fire alarm panel but was not told anything about the fire procedure at her induction[1283].
The issue raised with the Care Commission
49. In a self-evaluation returned to the Care Commission dated 15 January 2004, Ms Meaney included. under the heading "Areas for Development/Improvement", "Continual fire safety training for staff"[1284]. Ms Meaney explained that she hoped to enlist the assistance of the Care Commission inspectors to have a discussion about the matter, with a view to securing additional fire safety training[1285].
Fire Drills
Dates of fire drills
50. Fire drills took place on the following dates:
50.1. 29 January 2001;
50.2. 30 November 2001;
50.3. 16 August 2002;
50.4. 3 February 2003; and
50.5. 21 January 2004[1286].
51. This is a complete list of the fire drills which were undertaken during the time when Ms Meaney was Matron.
51.1. These are all the drills during that period recorded in Pro 27, the Fire Register.
51.2. Mr. Clark stated that Mr. Balmer had told him to record fire drills in Pro 27[1287].
51.3. Ms Meaney only recalled three drills during her time as Matron, although she accepted under reference to Pro 27 (which disclosed five) that there may in fact have been five with two of them being taken by another nurse when she was not there[1288]. Mr. Balmer accepted that statement[1289].
52. Mr. Balmer expected that Matron would keep information on fire drills in a different form in her office as part of her training records. He said that participants in drills would sign a sheet and that Matron "would take control of them and log them or lodge them wherever she did so"[1290]. However:-
52.1. Just such a sheet was lodged in Pro 27 in respect of the drill on 16 August 2002, while in Pro 27, participants in the drill on 3 February 2003 had signed another page. Ms Meaney confirmed that there was no other record (apart from Pro 27) where she would expect to find documents showing staff who had participated in evacuations[1291].
52.2. Mr. Balmer was not actually aware of any other document in which such records (which, as registered person, he had, a statutory duty to keep) would be kept[1292].
53. Mr. Balmer took the view that , in addition to fire drills, there were false or unwanted alarms, which had the effect, in his view, of an unannounced drill[1293].
Content of fire drills
54. Joe Clark would activate a fire alarm in a particular room, and staff would gather at the panel. Two staff would be dispatched to the area, to identify the location of the fire. This might be indicated by a cleaner's cone. One of them would report back and other members of staff would be dispatched to the area. Meantime the other member of staff would check the zone to see if there were any residents in it. If there were residents in their rooms, they would probably be brought up. But normally, at the time when drills were carried out, residents would be in the lounge at that time. Sometimes, but not always, members of staff might role-play as residents to be evacuated[1294].
55. Following the drill, there would be a discussion at the fire panel to discuss any concerns. According to Mr. Balmer, the discussion would be led by Mr. Clark[1295]. Ms Meaney stated that there would just be a discussion amongst the nurses and that Mr. Clark would not be present[1296]. It may be that practice was not uniform in this respect.
Fire drill 16 August 2002
56. The drill on 16 August 2002 (which was attended by Mr. and Mrs. Balmer and by Ms Meaney) probably took place at around 2 pm[1297]. This was organized by Mr. Balmer. He told Ms Meaney to observe what the staff did[1298].
Mr. Reid's recommendation
57. Mr. Reid identified a deficiency in the frequency of fire drills. His report, Pro 216, recommended that "Fire drills should be carried out at 6 monthly intervals"[1299].
Fire drill 3 February 2003
58. The drill on 3 February 2003 (which was attended by Mr. and Mrs. Balmer, Ms Meaney, Phyllis West and Joe Clark along with 7 other members of staff) probably took place mid-afternoon. Residents were moved to the sitting room area[1300].
The fire drill in January 2004
59. A fire drill was undertaken on 21 January 2004. Mr. and Mrs. Balmer were on holiday and Matron thought she had better do one[1301].
60. When the fire alarm sounded Sadie Meaney took charge[1302]. Patricia Taylor took a roll call of staff, and Allison Cumming a roll call of residents[1303]. Mhairi Sadiq and Margaret McCondichie were sent to "the ground floor". When Mhairi Sadiq got to the stairs she nearly went down the stairs to the lower floor. Margaret McCondichie tugged her and said it was the ground floor[1304]. Mhairi Sadiq explained[1305]:-
"I just got mixed up ... because I, because I though I was going to the ground, I thought ground was down, and the address of the home is New Edinburgh Road and that's sort of this main road that you would see here ... I just, I just got mixed up."
Only one resident was in his room; the remainder were in the day room at the time[1306]. Following the drill, Mhairi Sadiq told Ms Meaney that she had got mixed up between the lower ground and the ground floor. Ms Meaney told her that they were getting a new fire panel anyway[1307].
Coverage of drills
61. During the time that Ms Meaney was Matron, not all the staff of the Home were exposed to a fire drill[1308]. No fire drill was ever carried out on the nightshift[1309].
62. The following nightshift staff had never participated in a drill:
Isobel Queen[1310]
Eleanor Ward[1311]
Catherine Melia[1312]
Flora Davidson[1313]
Rosemary Buckley[1314]
Margaret Holmes[1315]
Brian Norton (bank)[1316]
Irene Richmond[1317]
Yvonne Carlyle[1318]
Fire safety training of staff who were on duty on the night of 30-31 January 2004
Isobel Queen
63. Isobel Queen received an induction from Patricia Taylor[1319]. Her evidence to the inquiry was that during the induction the fire panel was simply identified to her as they walked past it, although she had told the police that she had been shown the operation of the alarm and knew how to operate it[1320]. She watched the video in the day room on her own. She was given the questionnaire to fill in while she was watching the video and did so. She did not recall any discussion with anyone following the video[1321].
64. Ms Queen's evidence was that she had never been told what the Home's policy was in relation to what should happen if the fire alarm sounded[1322]. However, it seems likely that she had learned something of the procedure, perhaps from speaking to other staff[1323].
64.1. When asked what she would have done, she recounted the basics of the fire procedure followed at the Home (with the exception that she stated that she herself would go and investigate the area)[1324].
64.2. In response to Question 10 of the Questionnaire[1325], Isobel Queen had apparently marked (D), scribbled it out, and inserted (B). She could not herself remember how that had come about[1326]. A plausible explanation for the change to her answer to Question 10 was that she was given her induction by Patricia Taylor, who had been at the Home for many years and was familiar with the procedure which applied there[1327], and that Ms Queen was in fact told in the context of answering the questionnaire that the procedure at Rosepark involved checking first before phoning the fire service.
65. Ms Queen had answered Questions 13 and 17 on the questionnaire wrongly[1328]. However, she had correctly answered Question 9[1329]:
"You open the linen cupboard and find a small fire in some of the bed linen placed in the cupboard earlier that day. The first thing to do is: (A) close the door and raise the alarm ...".
66. Apart from her induction, she had no other fire safety training at Rosepark. She did not watch the video again. She had never taken part in a fire drill at Rosepark. She had never been given any training or instruction by matron or management at Rosepark about evacuation of residents in the event of a fire[1330].
Brian Norton
67. Brian Norton was a bank nurse. At his interview before he started at Rosepark he was not asked about his fire safety training. He was taken round the Home and shown the fire exits, extinguishers, break glass points and fire alarm panel. He was given a general description of the panel. He was not told anything about the procedure which was to be followed if the fire alarm sounded[1331]. At that time he was an enrolled nurse. He subsequently upgraded his qualification, but received no further training in fire safety. He never took part in any drills at Rosepark[1332].
Irene Richmond
68. Irene Richmond had watched the fire safety video as part of the group on 18 November 1999[1333]. In response to Question 10 of the Questionnaire[1334], she had apparently marked (D), scribbled it out and inserted (B). She had answered Question 16 (which was concerned with the appropriate fire extinguisher for use on an electrical fire) wrongly[1335].
69. She had never participated in a fire drill at Rosepark[1336].
Yvonne Carlyle
70. At some point after she started work, Yvonne Carlyle, had been shown around the bullding, including the fire exits[1337]. She had been shown the training video and had completed the questionnaire[1338]. She watched it on her own in the dayroom. Matron came in, put the video on, gave her the questionnaire and left her to it. She watched the video and then filled in the questionnaire. She left the questionnaire on matron's desk. No-one spoke to her about it afterwards[1339].
71. Yvonne Carlyle had never been told the policy for fire procedure at Rosepark[1340]. She understood that, as a carer, she was under instruction from the nurse on duty[1341]. Her expectation was that if the fire alarm sounded the nurse on duty would check the home for any visible signs of fire. If there were visible signs of fire, she would have expected the nurse to phone the fire brigade. If she could not find visible signs of fire, she would reset the alarm[1342].
72. At some point she had been told: (a) that if the fire alarm activated she should go to the panel and follow the instructions of the nurse in charge: (b) that if the fire alarm activated you would check the zone and if there was no fire you should phone Mr. Balmer or Joe Clark and (c) that the front car park was the place of safety. She may have been told this by the night sister[1343].
73. She had never participated in a fire drill since she started working at Rosepark[1344].
74. She had received no training in evacuation techniques[1345].
The questionnaires
75. Mr. Todd had undertaken an analysis of 48 questionnaires in employment records taken from Rosepark[1346].
75.1. Question 10 - 34 had had given Answer D without this being changed; 6 had given Answer B without this being changed; 3 had given Answer D but this had been crossed out and changed to B; 2 had ticked both B and D; and 2 had originally answered A but this had been corrected to D.
75.2. Question 15 - 45 employees had answered this correctly; 3 had not answered the question.
75.3. Question 16 - 15 employees had originally answered this incorrectly; one had not answered the question; in only two cases had the incorrect answer been corrected on the face of the questionnaire.
75.4. Question 17 - 3 employees had originally answered this incorrectly; one employee did not answer the question; in two of the three cases, the incorrect answer had been corrected on the face of the questionnaire.
75.5. Question 18 - 3 employees had originally answered the question incorrectly; two employees did not answer the question; all of the incorrect answers appeared to have been corrected on the face of the questionnaire.
75.6. Question 19 - 6 employees had originally answered the question incorrectly; one employee ticked two answers; two employees did not answer the question; of the six incorrect answers only three had been corrected on the face of the questionnaire.
75.7. Question 20 - Two employees (including Matron) had originally answered this question incorrectly; one employee did not answer the question; only one of the incorrect answers had been corrected on the face of the questionnaire.
Record-keeping
76. A record of training was kept on each individual staff member's file[1347]. This was kept because the Health Board and the Care Commission asked what staff training had been done[1348]. The record of staff training for a member of staff who had arrived after the introduction of the video in 1999 would contain only one entry relating to fire training - namely a reference to his or her induction. That would also be true of some - though not all - staff who had been employed before 1999[1349].
77. It would have been apparent from an examination of the individual employment training records that staff were not receiving at least one programme of fire safety training annually[1350]. Had Ms Meaney been asked what fire safety training was provided, she would have told the inquirer what the practice was at Rosepark[1351].
CHAPTER 21 (formerly 19A): EVACUATION AND ITS DIFFICULTIES
Evacuation: the policy of the Home
1. The policy of the Home in respect of evacuation was horizontal evacuation - i.e. to move residents to another area away from the seat of any incident to the next zone; and then staff would come and help to take them up to an assembly point or to the main dining room or sitting room[1352]. This was outlined in the fire notice Pro 334H in the following terms:
"Evacuate residents immediately involved near the fire area and continue to evacuate others systematically and calmly"
2. This was consistent with Question 11 on the questionnaire:
"The fire alarm has sounded and you've been instructed to evacuate the affected zone. What should you do first?"
The correct answer was (B) "Move people away from the affected zone to the next zone"[1353].
3. Ms Meaney put it this way[1354]:
"... you move them from the zone that was in danger to a safety zone, that would be the zone next to it, and then wait there for help, to get extra help to come. Evacuate all the rooms, if there were people in them, to the safety zone and then more help would come to take them up, away from the fire."
4. So, in the event of a fire in corridor 4, residents would be evacuated, in the first instance, to the landing at the top of the south-west stairwell or into corridor 3[1355].
Evacuation: practical challenges
5. There were very obvious difficulties in implementing a progressive horizontal evacuation policy for the residents from corridor 4 particularly on nightshift.
5.1. There would be up to 14 residents there, all of them requiring a degree of assistance, and some considerable assistance.
5.2. If it was not possible to evacuate them through the corridor 3/4 firedoor, it would be necessary to take them down the south-west stairwell.
5.3. It would not have been possible for all the residents from corridor 4 to congregate on the landing at the top of the south-west stairwell[1356]. Given the limitations of space on the landing of the south-west stairwell, it would be necessary to start taking residents downstairs during the evacuation process.
5.4. None of the residents in corridors 3 and 4 would have been safe to use the stairs at the south west corner of the building on his or her own. Some of them would require to be lifted or bumped down the stairs on a mattress or duvet[1357].
5.5. If staff were required to lift or pull residents as part of the evacuation process, they would find it progressively harder work as they became tired[1358].
5.6. The procedure envisaged that, if a fire was found and one of the two staff who had been sent to investigate came back to report this, one member of staff would phone the fire brigade and start phoning the emergency contacts. Another member of staff was meant to wait by the front door for the Fire Brigade. The third would return to the area to help. The member of staff who had made the phone calls would go as well as soon as she had made the phone calls. Until the Fire Brigade arrived there would be a maximum of three staff undertaking evacuation[1359].
6. Janette Midda carried out an exercise with a view to estimating the time which it would have taken to evacuate the residents in Corridors 3 and 4, in the event of a fire in cupboard A2[1360]. She estimated this at 22.5 to 37 minutes. These timings were estimated on the following basis:
6.1. That the residents of rooms 16 and 17 would be moved into corridor 3 and, with the residents of corridor 3, would then be moved out of corridor 3 towards the entrance; while the residents of rooms 9 to 15 were moved to the south-west stairwell. She estimated the time to take the 10 residents from rooms 9 to 15 to the south-west stairwell as between 13 and 21 minutes depending staff competency and fitness; and the timings to move residents from rooms 16 and 17 into corridor 3 and then the residents of corridor 3 into corridor 2 at 9.5 - 16 minutes depending on staff competency and fitness.
6.2. She identified, by carrying out practical exercises, times for two members of staff to move a resident from a bed onto an evacuation mattress and to the door of the room, approximately 3 metres. These varied from 52 seconds to 85 seconds, with the time increasing with the number of attempts due to fatigue. The timings would depend on the fitness of the members of staff involved.
6.3. She identified, by practical exercises, times for two members of staff to move a resident from a bed onto an evacuation mattress and to move the resident 15 metres across a vinyl floor. The times varied from 110 seconds to 175 seconds, depending on experience and fatigue. The timings varied quite considerably depending on staff fitness and confidence, from 3.8 to 6 seconds per metre.
6.4. She applied these timings to the distances between each room at Rosepark and the relevant safe area to identify a time to evacuate the resident(s) of that room. So, for example, she estimated that evacuating a resident from room 9 to the south west stairwell would take between 100 and 157 seconds, while to evacuate a resident from room 13 to the same area would take between 56 and 91 seconds.
6.5. She obtained the totals simply by adding together the timings for each individual resident.
7. Ms Midda recognized that there were differences between her exercise and the real situation, some of which would tend to decrease and others of which would tend to increase the timings[1361].
7.1. In a Care Home, with carpeted floors, it would be more difficult to drag the resident across the floor than on the vinyl floor where she carried out her exercises.
7.2. The exercise involved the use of an evacuation mattress, specifically designed for evacuation. In the absence of such a piece of equipment, it would be necessary to use a blanket or sheet, which would be more uncomfortable for the residents and would present a risk of injury.
7.3. In the real situation, rather than simply adding the timings for each resident together, it would be necessary to factor in staff returning from the place of safety.
7.4. In the real situation, a third member of staff might be able to assist more mobile residents to the safe area while two others were using an evacuation mattress. Mr. Todd also observed that, in a real situation, the fourth member of staff would also be available to assist for at least part of the time and, indeed, a time would come when the Fire Service would also be able to assist[1362].
7.5. Another possibility would be the use of a wheelchair if there was a wheelchair available, which would be quicker than using an evacuation mattress[1363].
7.6. On the other hand, the requirement to start taking residents downstairs as part of the evacuation through the south-west stairwell would tend to increase the timings and one would also want to have a member of staff at the bottom of the stairs caring for residents there.
8. Notwithstanding its limitations, Ms Midda's exercise is useful in providing a general feel for the difficulties would have been involved in evacuating the residents of this part of Rosepark[1364]. It is broadly consistent with a rule of thumb figure of about 2 1/2 minutes per resident for two members of staff spoken to by Mr. Shipp[1365].
9. Most fires in Care Homes do not develop into major fires. However - as the speed of development of the fire at Rosepark illustrates - in the event of a fire developing beyond the point at which first aid fire fighting is possible, the speed of fire development might well be such as to make it impossible to evacuate residents[1366].
Failure of management at Rosepark to address these issues
10. The management of Rosepark had not addressed these issues.
10.1. Thomas Balmer accepted that in the context of fire safety in a care home, the key consideration is the presence of vulnerable and dependent residents, and that in order to address that issue one would need to think through how and within what timescales residents could reasonably be evacuated from one area to another[1367]. However he had no understanding of the timescales that would be involved in moving 14 residents from corridor 4 into another compartment[1368]. He had given no thought to the question of evacuation under specific reference to the possibility of a fire taking place at night[1369].
10.2. The potential significance of the ratio of residents to staff had however been drawn to his attention by Mr. McNeilly in the course of a discussion in connexion with the second extension to Croftbank on 21 February 2001. Mr. Balmer and Mr. Dickie met with Mr. McNeilly in connection with this extension, on 21st February 2001. Mr. McNeilly's note of the points discussed includes reference to staff ratios in relation to rooms within zones[1370]. Mr. Balmer recalled a discussion about staff ratios in relation to rooms within zones, and understood that this was concerned with having adequate staff to effect horizontal evacuation from one area to another. He could not remember the detail of the numbers being discussed, although he recalled that it did not have a consequence for that particular extension[1371]. At that time Mr. McNeilly was working to SHTM 84, which provided that with 4 staff there should not be more than 9 beds in any one subcompartment[1372]. Mr. Balmer claimed that this particular ratio was never drawn to his attention before the fire[1373]. In any event, no change was made to the numbers of residents in corridor 4 at Rosepark.
10.3. Ms Meaney described a fire as "everybody's nightmare if you work in a nursing home"[1374]. She recognized that if there were ever a fire, it would be difficult to get the residents in corridor 4 out because of their frailty[1375]. She also recognized that there would be difficulties involved in getting residents from that corridor down the south-west stair[1376]. She said "I would dread having a fire ... because ... with the poor mobility of the residents we had it would have been very difficult"[1377]. However, she had never discussed this with anyone. Mr. Balmer always told her that the Home was very safe, "state of the art" and that there was very little fear of having a fire there, making reference in that regard to the stairwell[1378].
CHAPTER 22 (formerly 20) - THE MILLENIUM BUG AND THE FIREMEN'S STRIKE
The "Millenium Bug"
1. In advance of the millennium, Strathclyde Fire Service wrote to Rosepark in connection with anxieties about the potential impact of the millenim on computer systems. The letter stated[1379]:-
"In common with many other agencies and industries Strathclyde Fire Brigade is aiming for business as normal throughout the Millenium Year 2000 changeover. In order to achieve this we require the assistance of our clients, particularly in industry and commerce. As you are aware the Brigade requires information to pre-plan for possible fire incidents or other emergencies which may require our attendance. To ensure the information we hold is accurate and up to date could you please complete the attached pro-forma and return it to the office indicated. This may also be a good time to review your emergency procedures and building safety systems. Many safety systems include devices that measure time and dates. Many may not accept year 2000 dates."
2. The pro-forma asked "Have you reviewed your emergency plan?" and this question was answered "Yes"[1380].
3. According to Mr. Balmer, Rosepark's emergency procedures were reviewed at this time[1381]. Ms Meaney did recall Mr. Balmer going over it with them, but could not remember the details[1382]. Whatever was done, the procedure to be followed in the event of a fire alarm sounding was not changed.
The Firemen's Strike
4. In October 2002 the Care Commission sent both Matron and Mr. Balmer a copy of a letter from the Scottish Executive providing briefing in relation to the possibility of industrial action by the Fire Brigade Union[1383]. The briefing warned that, while military personnel would provide basic fire cover, this would not be at the same level as normal provision. It advised: "As there will be a markedly reduced level of fire cover in the event of industrial action, it is prudent to review both fire prevention and evacuation arrangements". Inter alia the advice stated:-
"On this basis you are urged to take preparatory action in the following key areas in order to minimize impact in the event of an incident. ...
- Check the effectiveness of the existing fire precautions
- Confirm that all staff are fully aware of fire and evacuation procedures
- Take appropriate steps to enhance staff vigilance
- Review arrangements for calling the emergency services in the event of fire
- Consider the need for additional staff or patrols
In premises regarded as presenting a high risk to life, management should consider the need for additional staffing levels or patrols in order to enhance as necessary existing arrangements for fire prevention, the early detection of fires, evacuation of the occupants, and first aid fire fighting particularly outside of normal working hours"[1384].
5. Mr. Balmer took the letter to Matron. He showed her a document headed "Fire Policy", p. 6 of Pro 311, which she had never seen before, which stated that she was responsible for implementing fire policy, and asked her to draw up a contingency plan. The Matrons of the two Homes worked together on this[1385]. Once the plan had been drawn up by the two Matrons, Alan Balmer appears to have played, effectively, a secretarial role in printing out the plans for the two homes[1386].
6. Pros 334H and 334I, the two notices which were on the wall next to the fire alarm panel, were the product of this exercise[1387]. It is a reasonable inference from a comparison between these notices and the similar (but different) documents in the Policy Manual, that they were modified versions of earlier documents in the form contained in the Policy Manual[1388]. The principal difference was the identification of a list of people who would come in to assist if there was a fire in the night[1389]. Although there were limited differences from the earlier documents, the aim was to emphasise that staff should be more aware and more vigilant[1390].
7. Matron showed the plan to Thomas Balmer and he told her to arrange a meeting for the staff[1391]. At the meeting, Joe Clark took the staff through the "Checklist for Evacuation" step by step[1392]. Ms Meaney proposed that there should be a list of names of people who would be willing to come in and assist if a fire broke out[1393]. Eleanor Ward and Irene Richmond expressed disquiet that staff were being asked to attend and go into a potentially burning building[1394]. A copy of the plan was posted on the wall along with a list of names of those who had volunteered to come in and assist if there was a fire in the night, and a sign-up sheet for staff who had not been at the meeting[1395].
8. The management essentially took a "hands off" approach to this issue, leaving it to the two Matrons to address the matter[1396]. Mr. Balmer stated that he sat in on the meeting but would not volunteer any input because the Matrons were in control[1397]. His presence was not recalled by Eleanor Ward[1398].
CHAPTER 23 (formerly 21) - FALSE ALARMS
General
1. Frequent false alarms create an acknowledged problem in relation to fire safety. An organization which is subject to frequent false alarms can become complacent. Staff come to assume that every time the alarm operates it is a false alarm, with the consequence that the response of staff to an alarm comes to lack urgency[1399].
2. An organization which experiences frequent false alarms (and Care Homes are recognized to have a problem in that regard) requires to take steps to counter the complacency which can creep in[1400].
3. BS 5839-I provided that the person responsible for the fire alarm system should ensure that a logbook was kept, in which among other things, false alarms were recorded. Mr. Todd explained that, unless an eye is kept on false alarms, they can get out of control. It is necessary to monitor them, lest steps require to be taken to reduce the level of false alarms or to deal with a specific problem causing false alarms[1401].
The frequency of false alarms at Rosepark
4. There were frequent false or unwanted alarms.
4.1. Mr. Balmer said that there were probably as many as ten or more of these a year[1402].
4.2. Ms Meaney said that she had been present many times when there was a false alarm[1403]. Her impression was that this would happen sporadically but could be two or three times a month, both on the day and nightshift[1404].
4.3. Patricia Taylor had experienced false alarms, in circumstances where the alarm was set off by the toaster. A member of staff would run up from the tearoom to tell the staff at the panel that it was the toaster which had set off the alarm[1405].
4.4. Phyllis West experienced one false alarm after she had returned from maternity leave in November 2003 and before the fire. This happened at about 3 pm one afternoon. Joe Clark went up into the attic to investigate. Mr. Balmer was present[1406].
5. The Fire Brigade was never called to any such alarm[1407].
6. Mr. Balmer gave evidence that, on one occasion when the fire alarm had been activated by the toaster, a staff nurse on nightshift had immediately called out the Fire Brigade "and they were less than pleased". The staff nurse in question had been less than happy with the way the Fire Brigade had treated her because she felt that she had been doing what was expected of her[1408]. Mr. Balmer could not really remember the context in which it had come to his attention that the staff nurse was less than happy[1409]. This was something he had been told by someone else. He could not put an approximate date on the incident[1410]. He could not remember which staff nurse was involved.[1411] He did not himself receive any communication from the Fire Service about the incident[1412]. He had made no record of the incident[1413].
False alarm December 2003
7. There had been an alarm on the nightshift in December 2003[1414]. The staff on duty were Isobel Queen, Mary Rodgers, Yvonne Carlyle and Collette Wallace[1415]. Isobel Queen was the nurse in charge[1416].
8. When the fire alarm sounded, Isobel Queen and Mary Rodgers went to the panel. So did Yvonne Carlyle. They checked the panel. This indicated that there was a fire in the attic[1417]. Isobel Queen silenced the alarm[1418] and Isobel Queen, Mary Rodgers and Collette Wallace went and checked outside for visible signs and saw none. All four staff checked all round the home. They checked all the rooms and corridors both upstairs and downstairs[1419]. They looked at the ceilings[1420]. They discussed trying to get access to the attic but they did not know where the ladders were or the key for access to the attic hatch[1421]. They went downstairs because residents were upset so they had to go downstairs to reassure them[1422]. There were no visible signs of fire[1423].
9. Isobel Queen telephoned Joe Clark[1424]. She told him that the fire alarm had gone off and that it was the attic. She asked him what they should do. He told her that if there were no signs of fire and smoke she should reset the alarm[1425]. Ms Queen then reset the alarm[1426]. After she reset the alarm nothing happened[1427].
10. It would appear from Mr. Clark's evidence that this was the second time such an event had occurred in reasonably close succession. On the first occasion, he had been called out at night. The member of staff told him that she had looked around the home and found nothing. He went to the Home and entered the attic. The detector had activated but there was no sign of smoke or fire in that part of the attic or the sections of the attic leading up to it. He did not check the remainder of the attic but went downstairs, reset the panel and waited for a period to see if it activated again. On the second occasion, it was the same situation. Mr. Clark told the nurse to reset the alarm and again went over to investigate. It was the same smoke detector which had activated. There were no signs of any problems, so he simply removed the detector head and replaced it for one in the secretary's room[1428].
11. No call was made to the fire brigade[1429]. No record was made of either incident[1430].
12. These events disclose a number of troubling features:
12.1. In each case, this might have been a fire spreading in the attic. The Fire Service should plainly have been summoned without delay[1431]. The fact that the nurse in charge called Mr. Clark may be taken to indicate uncertainty about the proper procedures.
12.2. Mr. Clark's instruction to the staff should have been to call the Fire Service. His instruction to reset the system and see what happened was plainly inappropriate[1432].
12.3. The fact that on the incident recalled by Ms Queen and Ms Carlyle, staff went downstairs although the alarm indicated the attic suggested that they had no confidence that the fire alarm was giving them correct information[1433].
12.4. When Mr. Clark attended and went into the attic to investigate, he was putting himself at serious risk - going into an area where, so far as the fire alarm disclosed, there was a fire without the Fire Brigade having been summoned. This indicates a lack of confidence that the system was to be relied on[1434]. It is worth noting that Mr. Clark estimated 10-15 minutes as the time from leaving home until he had completely checked the attic space[1435].
13. Mr. Todd described the scenario as "fairly awful"[1436]. It illustrates why the guidance in the Fire Safety Video was plainly correct - namely that if the fire alarm sounds on the nightshift, one should not assume it is a false alarm but should phone the Fire Brigade.
14. Thomas Balmer was advised about this incident after the event. He was aware that the alarm indicator related to the attic. He was aware that the Fire Brigade had not been called. He himself would have advised staff to phone the Fire Brigade in relation to an alarm in the attic because the attic was out of reach. He was concerned that, faced with such a situation, the nurse in charge had not called the Fire Brigade. His evidence was that he voiced his concerns to Matron - though in the context of a general discussion - to the effect that if the staff nurse was unsure or uncertain in such circumstances why did she not call the Fire Brigade. He did not instruct Matron to speak to the staff member involved[1437].
15. This was an inadequate response. Management should have taken the staff to task for following these actions in what could have been a very serious fire. The inadequacies of the procedure which had been followed should have been addressed as a matter of extreme urgency. This should have been done irrespective of whether the alarm had in fact been confirmed to be a false alarm. The alarm should also have been recorded[1438].
Recording of false alarms
16. Pro 27, the Fire Register, contained two entries relating to false alarms dating from shortly after the Home opened. There were no subsequent entries. Mr. Clark had never been instructed to record false or unwanted alarms and never did so[1439]. Indeed, when Mr Clark was asked why there was no record of an incident which he described in which he claimed the Fire Service had been called out, he said "Because it was a false alarm"[1440].
CHAPTER 24 (formerly 22) - MR. REID'S INVOLVEMENT
Mr. Reid
1. Mr. Reid was a self-employed business consultant, who provided advice in employment law and health and safety[1441]. Between 1995 and 2003 the division of work between employment law and health and safety was about 60/40. The health and safety work which he undertook covered a wide range of health and safety matters[1442].
2. Before becoming self-employed in 1995, Mr. Reid had been employed for a number of years in managerial positions, firstly in Scottish Bus Group and then with Insurance Courier Services[1443].
3. Mr. Reid held a NEBOSH General Certificate in Occupational Safety and Health, acquired following a course of study at Stevenson College. He was a Technician Member (formerly Associate Member) of the Institute for Occupational Safetty and Health[1444]. The basic requirement for that Membership was to hold the NEBOSH General Certificate[1445]. As a member of the Territorial Army, he had attended a HM Forces Unit NCO Fire Course in 1998. In September 1999, he had undertaken a one day fire safety audit and fire risk assessment course at Gullane[1446]. He held no specialist qualification in fire risk assessment[1447].
Involvement at Rosepark
4. Mr. Reid was first engaged by Mr. Balmer in 1996/97. He agreed to provide health and safety and employment law services for both Rosepark and Croftbank for a quarterly retainer fee of £200[1448]. He agreed to look over employment law contracts and policies and procedures, to provide health and safety policy and to make an annual inspection for health and safety issues. It was envisaged that he might be called on to provide advice by telephone on specific issues that might arise[1449].
5. Mr. Reid understood that his appointment related to Regulation 7 of the 1999 Regulations[1450], which provided as follows:
"Every employer shall, subject to paragraphs (6) and (7), appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997."
6. At the outset, Mr. Reid provided an update of the health and safety policy which the Home had at the time. The general policy statement at the front of the Policy Manual originated from him[1451]. It is unclear whether any of the other health and safety documentation in the Manual did: if it did, it had been reformatted[1452]. Mr. Reid also provided some generic template risk assessments for specific tasks or activities[1453].
7. After his appointment, Mr. Reid visited Rosepark every 12 or 14 months[1454]. During these visits:-
7.1. Mr. Reid would sit down with Thomas or Anne Balmer - usually Thomas Balmer - and go through a series of questions.
7.2. Mr. Reid would then do a walk through the Home, to identify any health and safety matters which required to be attended to[1455].
8. On one of these visits, he had viewed the fire training video[1456] and he understood that all staff would see that video[1457]. He had, during previous visits, looked at records for portable appliance testing, and staff training records for matters such as manual handling[1458].
9. Thomas Balmer's evidence about Mr. Reid's previous involvement at Rosepark was vague and unsatisfactory, but he did vaguely recall going through questions with Mr. Reid[1459].
10. In carrying out audits or assessments, Mr. Reid used a computer template. This was a generic health and safety template; not one specific to a care home[1460].
11. Apart from Rosepark and Croftbank, Mr. Reid dealt with two other nursing homes. These were the only clients he had dealt with up to January 2003 whose premises presented a sleeping risk or mobility impaired people[1461]. He had never previously dealt with premises which presented as challenging an issue in relation to fire safety as Rosepark[1462].
12. Mr. Reid was aware of the Approved Code of Practice on the application of the Management of Health and Safety at Work Regulations 1999 (Pro 1440) and Fire Safety: An Employer's Guide (Pro 1120), but not (before the fire at Rosepark) of the Home Office Green Guide (Pro 1378), the Northern Ireland HTM 84 (Pro 1436) or SHTM 84[1463].
Pro 216
13. Pro 216 was described as a "Management of Health and Safety General Risk and Compliance Assessment Report" and bore the date 6 January 2003. Following the fire it was found in a filing cabinet in the Balmers' office[1464].
14. The document comprised:
14.1.
A number of pages which were Word documents which had been generated by
Mr. Reid himself.
14.2. A section, generated by the computer template, which included a Master Survey and a computer-generated list of Outstanding Actions[1465].
14.3. A section containing Word documents generated by Mr. Reid, each of which contained, in tabular form, a "Hazard Identification & Risk Assessment" relating to a particular hazard[1466].
15. The Introduction to the document stated[1467]:
"Purpose of Report and the extent of current legal compliance
The purpose of this General Risk and Compliance Assessment Report is to ensure that you, the employer are complying with the legislative duties imposed on you by the Health and Safety at Work etc Act 1974 and other relevant statutory requirements.
The Management of Health and Safety at Work Regulations 1992 and in particular Regulation 3 states:
"every employer shall make a suitable and sufficient assessment of:
(a) the risks to the health and safety of his employees to which they are exposed whilst at work, and
(b) the risks to the health and safety of persons who are not in his employment arising out of or in connection with the conduct by him of his undertaking"
To assist in this undertaking you have appointed Reid Consultants as Health and Safety Consultants to provide competent advice and guidance in conformance to Regulations 6 and 7 of the Management of Health and Safety at Work Regulations 1992.
The content of this report is a summary of our Consultants' findings at the time of General Risk and Compliance Assessment stated on the front cover of this report.
It should be noted that you have a legal duty to retain this report on file together with any subsequent documentation."
16. This was followed by a page which stated as follows[1468]:
"At the time of this assessment visit it was established that you did not have in place a suitable and sufficient Health and Safety Policy with supporting documentation. A bespoke Health and Safety Policy and Procedures Manual has now been provided, and it now requires completion.
You are advised to adopt the policy and address issues raised by this, e.g. signatures, dates etc.
Section 2(3) of the Health and Safety at Work et Act 1974 states that
[the section is quoted]
Once the Policy Statement has been approved by you, and dated, you must ensure that it is brought to the attention of all your employees and any others who may be affected by your undertaking.
With reference to your "Organisation" and "Arrangements", there are Sections contained without your Health and Safety Policy and Procedures Manual will identify job holders within your Organisation who have responsibility for the various aspects of health and safety management and or supervision.
You must ensure that the job holder(s) and employees identified are formally made aware of their responsibilities and have the appropriate training and resources allocated to allow them to fulfil their legal obligations within the scope of your Health and Safety Policy and supporting documentation."
17. The next page set out a method of risk weighting used by Mr. Reid to obtain a hazard rating. This operated by multiplying together numerical values attributed to the frequency of a hazard occurring, the likelihood of that hazard causing injury, and the severity of the injury[1469].
18. There was then a page, prepared by Mr. Reid, which set out in tabular form problems which Mr. Reid had noted, including, inter alia the following:-
"HEALTH & SAFETY MANAGEMENT/DOCUMENTATION
|
REF |
PROBLEMS NOTED |
RECOMMENDATIONS |
RATING |
|
D1 |
Although a Health & Safety Policy was available, it did not have sufficient detail |
A Health & Safety Policy and Procedures Manual has been supplied. All relevant sections of the Manual should be signed off and all staff should be given the opportunity to study the Manual and have any concerns addressed |
150 |
|
D2 |
No Risk Assessments for tasks carried out by outside contractors |
Full Risk Assessments should be obtained from outside contractors before they are allowed to commence any potentially hazardous work |
150 |
FIRE
|
REF |
PROBLEMS NOTED |
RECOMMENDATIONS |
RATING |
|
F1 |
Employees have not been practiced in Fire Drills |
Fire Drills should be carried out at six monthly intervals |
500 |
|
F2 |
Some Fire points were partially obscured by day-to-day items |
This requires very careful monitoring. Staff should be constantly reminded about the importance of keeping Fire points clear at all times |
350 |
|
F3 |
Some fire extinguishers had their safety pin retaining clips missing |
These items should be replaced |
80 |
|
F4 |
Tins of paint stored in lift room |
These items should be stored in a more suitable area |
35 |
GENERAL
|
REF |
PROBLEMS NOTED |
RECOMMENDATIONS |
RATING |
|
G1 |
Door to the main electrical cupboard was left unlocked |
This door should be locked at all times |
150 |
..."
19. There then following the computer-generated list of Outstanding Actions. This identified four items:
F4. Are Fire Drills carried out?
W29. Do roofs that require occasional access having crawling boards available?
D5. Are Health & Safety responsiblities clearly defined in the Health & Safety Policy? Do employees have access to the Health & Safety Policy?
W11. Are doors on traffic routes provided with transparent panels?
In relation to F4 this page noted the "Risk" as "High" and identified the following action: "Fire Drills should be carried out at least every 6 months. The names of those taking part, the time taken to evacuate the premises and any remedial action needed should be noted." Responsibility was attributed to "Alan Balmer/Matron" and the "Proposed Date" 30/01/03.
In relation to D5, this page noted the "Risk" as "Medium" and identified the following action: "Ensure that all employees are aware of their Health & Safety responsibilities and that they have access to the Health & Safety Policy". Responsibility was attributed to "Jim Reid/Alan Balmer" and the "Proposed Date" 30/01/03.
In relation to W11, this page noted the "Risk" as "Medium' and identified the following action: "Doors on traffic routes whould be provided with a transparent panel to allow anyone approaching the door to view anyone approaching from the other side". Responsibility was attributed to "Maintenance" and the "Proposed Date" 10/01/03.
20. The computer-generated Master Survey comprised a list of questions, which called for a "Yes" or "No" answer. The answers to which had been input by Mr. Reid following his visit to Rosepark. The computer had then generated against each question an "Action"[1470]. The Master Survey included (amongst others) the following questions and answers.
20.1. D5. Are Health & Safety responsiblities clearly defined in the Health & Safety Policy? Do employees have access to the Health & Safety Policy?
Answer: No
Action: Ensure that all employees are aware of their Health & Safety responsibilities and that they have access to the Health & Safety Policy.
20.2. D6. Is there an Emergency Plan? Are staff aware of it?
Answer: Yes
Action: Ensure all employees have been trained to respond to the requirements of the plan.
20.3. M3. Do staff have adequate health and safety training? Is it documented?
Answer: Yes
20.4. M4. Have risk assessments been carried out? Have they been recorded (more than five employees)? Are they suitable and sufficient?
Answer: Yes
Action: Continue to monitor, review at regular intervals and amend if required.
20.5. E1. Has the fixed wiring installation been checked during the previous 5 years?
Answer: Yes
Action: Continue to monitor, ensuring fixed wiring installation is checked by a competent person at least every 5 years.
20.6. F1. Does the building have a Fire Certificate?
Answer: Yes
20.7. F2. Does the organization come under the Fire Precautions (Workplace) Regulations?
Answer: Yes
20.8. F3. Is there an Emergency Plan?
Answer: Yes
Action: Ensure that all staff are aware of the Emergency Plan and their role within it.
20.9. F4. Are fire drills carried out?
Answer: No
Action: Fire drills should be carried out at least every 6 months. The names of those taking part, the time taken to evacuate the premises and any remedial action needed should be noted.
20.10. F9. Have staff members been trained to use fire extinguishers?
Answer: Yes
Action: Ensure that refresher training is carried out at regular intervals
20.11. F15. Is the system for controlling the amount of flammable substances/flammable materials effective?
Answer: Yes
Action: Continue to monitor.
20.12. F18. Are all internal fire doors clearly labeled? Are they kept closed at all times?
Answer: Yes
Action: Continue to monitor, ensuring that internal fire doors do not get wedged/chocked open.
20.13. W11. Are doors on traffic routes provided with transparent panels?
Answer: No
Action: Doors on traffic routes should be provided with a transparent panel to allow anyone approaching the door to view anyone approaching from the other side.
21. There was a Hazard Identification & Risk Assessment sheet[1471] for a hazard described as "Fire Extinguishers and Fire Escapes". This identified the following under the heading "Hazard Category": Fire, Gas, Human Error, Manual Handling and Use of work equipment. It identified the following "Persons at risk": All workers. Inexperienced staff, Members of the public and Visitors. It quantified the hazard at the maximum possible hazard rating of 1000, by attributing a rating of 10 ("constantly") to Frequency, a rating of 10 ("Inevitable") to Likelihood, and a rating of 10 ("Fatality") to Severity. It identified as "Existing Controls": Fire Fighting Equipment; Comprehensive Fire Alarm System; Good Fire Management Procedures; and Staff Training. It answered "No" to the question "Are these controls adequate to contain the hazard?" In response to the question "If no, what additional measures are need to properly contain the hazard?" it stated "Regular fire drills should be carried out".
22. The computer generated template which Mr. Reid used was prepared using a version of the software which had, by January 2003, been superseded by updates[1472].
The background to Pro 216
23. A pre-inspection return was issued by the Care Commission towards the end of 2002. Among other questions that return asked[1473]:-
"16. Has the premises' Risk Assessment been reviewed in the last twelve months?"
24. Ms Meaney could not remember that question specifically but would have referred it to Mr. Balmer[1474]. This prompted the instruction of Mr. Reid[1475]. It was Alan Balmer who telephoned Mr. Reid in relation to this. He instructed Mr. Reid to deal with both buildings[1476]. According to Thomas Balmer, Mr Reid was asked to produce it before the pre-inspection report had to be returned but was late.
25. The answer to the Care Commission's question was "Yes". Thomas Balmer accepted that the answer should have been "No"[1477]. Likewise, a question as to whether the service had a "risk assessment - premises" was ticked on the basis that it was in the process of being prepared by Mr. Reid[1478].
The preparation of Pro 216
26. Mr. Reid visited Croftbank and Rosepark on 6 January 2003[1479]. He spent half a day at each home[1480].
27. Mr. Reid attended first at Croftbank. He undertook a walk round the building with Alan Balmer before going through various questions with him and looking at certain records[1481]. Alan Balmer then took Mr. Reid to Rosepark[1482].
28. During the visit to Rosepark:-
28.1. Mr. Reid walked round the building with Alan Balmer[1483]. They went to all parts of the Home, including one or two residents' bedrooms. Inter alia, Mr. Reid checked that the door to the main electrical cupboard in the foyer was locked, that fire extinguishers and fire notices were in place, that the corridor firedoors closed when the magnetic catches were released and the external fire exits opened and were not blocked[1484]. Apart, perhaps, from some staff in the laundry and the kitchen, Mr. Reid did not speak to any members of staff[1485].
28.2. Mr. Reid went through the list of questions generated by the computer template to which he was working with Alan Balmer[1486]. He also looked at certain documentation, including at least Pro 27 the Fire Register[1487]. He saw neither the Policy Manual, Pro 259, nor any Emergency Plan[1488].
29. According to Alan Balmer's evidence, the question and answer exercise took place in Matron's office and Matron and another nurse were also present[1489]. If it is necessary to do so, his evidence in this regard should be rejected.
29.1. Mr. Reid stated that he had no substantive dealings with Matron. Mr. Reid stated that if Matron was about he would probably speak to her but simply as a courtesy and not to discuss matters of substance[1490]. But he would not dispute evidence from Ms Meaney that she had never met him[1491].
29.2. Ms Meaney stated that she saw Alan Balmer take two men right round the Home. Thomas Balmer came in later and asked Matron if she had seen Jim Reid. She had not been introduced to Mr. Reid. She did not meet him on any other occasion[1492].
29.3. Alan Balmer stated that he would not have had the knowledge to answer the questions for Rosepark[1493]. However:-
29.3.1. He accepted that he had answered the questions asked during the walk-round[1494]. He would have been willing, during the walk-round, to have a discussion with Mr. Reid to the effect that the corridor fire-doors were closed at night[1495].
29.3.2. It is not inherently unlikely that Alan Balmer would answer questions about Rosepark, proceeding on the assumption that the position was the same as that at Croftbank. He had, for example, provided quite detailed information to the police following the fire about matters such as electrical testing and training at Rosepark[1496]. He was also prepared to give evidence to the Inquiry to the effect that induction training at Rosepark would be the same as at Croftbank[1497].
30. Thomas Balmer was in the building while Mr. Reid was carrying out the exercise, but took no part in it[1498].
31. Some of the questions in the Master Survey were answered on the basis of observation; others on the basis of information provided orally by Alan Balmer; and at least Question F4 on the basis of documentation. Mr. Reid answered inter alia the following questions on the basis of information provided to him orally by Alan Balmer during his visit: D6, D8, M3, E1, F1, F9[1499].
32. Mr. Reid's approach was, to some extent, informed by his previous work at the Home.
32.1. He understood, on the basis of oral discussions which he had previously had, that all staff would get fire training at induction and that it would be carried out at intervals thereafter. He had previously viewed the fire safety training video, and had been told by Thomas Balmer that they had a fire-fighter who came in to deliver a fire safety talk to staff[1500]. The viewing of the video had led him to believe that the cross-corridor fire doors would be closed at night[1501].
32.2. Mr. Reid had asked about the checking of the fixed electrical installation on previous visits and had never received a negative answer to this question. It would have been his practice to explain what was meant by "the fixed wiring installation" and that, by checking, he meant examination and checking in accordance with the IEE Regulations[1502].
32.3. He was aware (from previous discussion with Thomas Balmer) that some bedroom doors would be left open, because residents became distressed if the door was closed. He was concerned about this (inasmuch as it increased the risk of smoke and flames entering the room or spreading out), but understood the reasons for the practice[1503].
33. Mr. Reid stated that he had answered question F4 (about fire drills) in the way that he did because he had found, by examining Pro 27, that the Home was overdue a fire drill (which he considered should be undertaken every 6 months). The previous drill had in fact taken place less than 6 months before his visit, but Mr. Reid explained that it was described only as "fire drill" with no reference to whether there had been a partial evacuation[1504]. He also explained that the rating of 500 given to this point reflected how seriously the requirement for fire drills should be taken "and that fire is such a high risk in the workplace that drills should be carried out at regular intervals"[1505].
34. During the walk-round Mr. Reid checked the cupboard where the main switchgear was in the foyer to see whether there was a buildup of flammable materials there and whether the door was locked. He was not aware whether there were fuse boxes in other locations[1506].
34.1. Had he looked in a cupboard and seen a fusebox and on shelves adjacent to that piles of papers and games and plastic aprons and suchlike, he would have answered F15 in the negative and recommended their removal. The same would have applied if he had found aerosols in that cupboard[1507].
34.2. Mr. Reid had recommended that the door to the main switchgear cupboard should be locked because of the potential for someone going into the cupboard and possibly getting electrocuted by touching the switchgear. The same concern would have applied to other cupboards containing fuse boxes[1508].
35. Mr. Reid initially explained that the Hazard Identification and Risk Assessment for "Fire Extinguishers and Fire Escapes" was concerned with the risk of injury through a fire evacuation using fire escapes or from incorrect use of fire extinguishers, and not to the risk of injury by smoke and fire, though it later became apparent that he had in mind risks arising from fire more generally[1509]. This hazard had been given the maximum possible rating. The following comments may be made about the exercise which Mr. Reid reported in this part of the document:-
35.1. Mr. Reid acknowledged that the assessment did not address the risk to residents of the Home[1510].
35.2. The reference to "Good Fire Management Procedures" referred to the following[1511]:-
35.2.1. There was little in the way of a build-up of flammable materials.
35.2.2. The fire alarm system was tested regularly.
35.2.3. The fire exits were not jammed or blocked.
35.3. The only respect in which Mr. Reid considered that the existing controls were inadequate to control the risk was the problem which he had identified in relation to fire drills.
The response to Pro 216
36. After Pro 216 had been prepared, Mr. Reid sent it to Alan Balmer[1512]. Alan Balmer did not look at the document and simply passed it on to Rosepark[1513]. He was not involved in any discussions about the document[1514]. He was not concerned to know whether the exercise had generated any action points[1515].
37. Thomas Balmer claimed that he perused Pro 216, spoke to Mr. Reid on the phone about certain aspects of it, and passed it to Ms Meaney for her comments[1516]. Mr. Balmer's evidence to this effect should not be accepted:-
37.1. Mr. Reid stated that he had no further contact with anyone from Rosepark in relation to Pro 216[1517];
37.2. Ms Meaney stated that she had never seen the document and that she had never been shown a fire risk assessment in relation to Rosepark. A requirement to note the names of those taking part in drills, the time taken to evacuate the premises and remedial action needed (as specified in Pro 216) was never drawn to her attention[1518].
But it may be the case that the specific point about fire drills was addressed, since a fire drill was held in early February[1519].
38. Notwithstanding that the risk assessment had not in fact at that date been undertaken, Ms Meaney signed and dated the Pre-inspection Return on 10 December 2002, with Question 16 answered "Yes".
Were there earlier risk assessments?
39. An issue arises on the evidence as to whether or not a document of the sort seen in Pro 216 had ever previously been produced for Rosepark. On the evidence it may be concluded that no such document was produced.
39.1. Pro 216 was the only document of this sort which was recovered after the fire at Rosepark Care Home[1520]. Mr. Balmer stated that generally speaking, they archived most, if not all, documents[1521]. The reasonable inference is that there had never been any such document.
39.2. Thomas Balmer's evidence in relation to this matter was unsatisfactory. He initially stated that Pro 216 was the second such document produced by Mr. Reid[1522] albeit that he could remember nothing about it[1523]. He had then given evidence that Mr. Reid had provided a survey in disc form in 1997 and then in updates, which were sent in disc form to Alan Balmer at Croftbank House. But it became apparent that, so far as Mr. Balmer understood the position, the material provided on these discs consisted of a health and safety policy and blank risk assessment forms and not a risk assessment[1524]. His ultimate position was that he did not recall ever previously having received a document of the nature of Pro 216 or ever having previous discussions with Mr. Reid about a risk assessment[1525].
39.3. Alan Balmer gave evidence that there had been no complete risk assessment in one document for the building prior to the exercise undertaken in January 2003[1526].
40. Mr. Reid stated that he had produced reports following his earlier visits[1527]. However, he had retained no record of any report prior to Pro 216[1528]. If he did produce any sort of report or documentation following these earlier visits, they were not in the same form as Pro 216[1529], and, in any event, those documents had left no impression on the management of Rosepark and had not been retained[1530].
41. The circumstances in which Pro 216 came to be commissioned tend to suggest that the Home had no previous document which it regarded as a risk assessment.
CHAPTER 25 (Formerly 22A(1)): Visits to, and Re-inspections of, Rosepark by Officers of Strathclyde Fire and Rescue Service ("SF&R") under section 1(1)(d) of the Fire Services Act 1947
The purpose of this chapter is twofold.
In the first place, it is intended to provide a factual narrative of the visits made by officers of SF&R to Rosepark under section 1(1)(d) of the Fire Services Act 1947. The visits are relevant to an understanding of the nature and extent of contact between Rosepark and SF&R prior to the fire. They are also relevant to an understanding of the degree of misunderstanding which existed among regulators as to the role assumed by SF&R in relation to nursing homes like Rosepark.
In the second place, this chapter is intended to provide a factual narrative in relation to the risk catagorisation of Rosepark. Risk catagorisation was relevant at two levels. It could advise the level of pre-determined attendance of fire appliances at premises, and it could also affect the frequency with which familiarisation visits were undertaken at premises by the watches of local fire stations.
In chapter 44(5) the Crown propose a determination that it would have been a reasonable precaution for SF&R to have classified Rosepark as "special risk" under Operational Technical Note index number A6, such that each watch at Bellshill Fire Station made an annual familiarisation visit.
Introduction
1. Section 1(1)(d) of the Fire Services Act 1947[1531] provided that-
"It shall be the duty of every fire authority in Great Britain to make provision for fire-fighting purposes, and in particular every fire authority shall secure-
(d) efficient arrangements for obtaining, by inspection or otherwise, information required for fire-fighting purposes with respect to the character of the buildings and other property in the area of the fire authority, the available water supplies and the means of access thereto, and other material local circumstances..."
2. The section just described was for the benefit and protection of operational fire officers[1532].
3. In practice, the intention of the section, as understood by operational firefighters at the time, was that fire officers would attend premises within their area of operation, became familiar with those premises, their layout, the location of services, and any particular risks of which they required to be aware[1533], indeed anything that might affect operational capabilities[1534].
4. Sir Graham Meldrum, formerly HM Chief Inspector of Fire Services for England and Wales, described the purpose of the section as being to familiarise firefighters with the layout of a particular building, any particular risks associated with the building, the water supplies to the building, such matters as the built in fire protection in the building, the life risk applicable to it, the number of staff who would be available for an evacuation, and the training and knowledge of staff as to their role during an evacuation. Access to a building was also an area that would be covered by a familiarisation visit, and, allied to that, questions such as where appliances would be parked, and the location of the fire alarm panel (such that appliances responding to an incident would attend at the point as close as possible to the main entrance and the fire alarm panel[1535].
5. Hugh Adie, latterly Senior Divisional Fire Safety Officer for SF&R, based at Brigade Headquarters, Hamilton, was asked what would be covered in a section 1(1)(d) on the matter of access. His response was to refer to (i) the nearest available main road to the building, (ii) where the appliances could be sited should they require to be engaged in firefighting operations, (iii) the location of the nearest water supply, and (iv) the height and number of floors in the building[1536]
6. Strathclyde Fire Brigade (as it then was) sought to give effect to section 1(1)(d) of the 1947 Act by a system of inspections by watches stationed at the local Fire Station.
7. In December 1989 Strathclyde Fire Brigade issued updated guidance on inspections under section 1(1)(d) of the 1947 Act. The guidance was included in part II of a document known as "Brigade Instruction - Operational Technical Note Index No. A6 ("OTN A6")[1537].
8. Paragraph 2.1(xvii) of part II of OTN A6 deemed residential care premises such as elderly persons homes as being normally suitable for inspection and report.
9. Following its opening in 1992 was the subject of inspection by each of red, green, white and blue watches from the local fire station, Bellshill Fire Station[1538]. A record of visits and re-inspections, together with relevant information ingathered through such visits or re-inspections was maintained by Strathclyde Fire Brigade[1539].
10. One copy of production 182, comprising the section 1(1)(d) records for Rosepark, was kept in the general office of Bellshill Fire Station. Another copy was kept on the appliance. Records for all 1(1)(d) premises were kept in this way[1540].
11. The intention of OTN A6 was that premises not designated as "special risk" would be visited by one watch per year. In practice this meant that each watch would visit each set of premises deemed suitable for a section 1(1)(d) inspection once every four years[1541].
12. In practice a re-inspection, where it is referred to in paragraph 3.1 of OTN A6, was carried out by the operational personnel of the whole of one watch, and was treated as a familiarisation visit[1542].
13. Premises designated as "special risk" would attract an annual visit by each watch[1543].
14. Premises would be considered to be "special risk" if they needed a first attendance over and above that appropriate to the risk which predominated in the surrounding area, such as "Residential care premises of substantial size presenting abnormal risks to life or property". Bellshill was a "C" risk area[1544]. If there were premises which fell within the definition of "special risk" then the pre-determined attendance could be increased[1545].
15. Under the now repealed Fire Services Act 1947 there was a time set for attendance at an incident of the first and second appliances. A category "B" building would not attract a greater pre-determined attendance. It would, however, attract a shorter target attendance time by the first and second attending appliances[1546].
16. OTN A6, paragraph, part II, provided for the giving of annual lectures to operational personnel on all 1(1)(d) risks in the Fire Station's area[1547]. The lectures were not for the benefit of operators or employees of the visited premises[1548].
17. Where a section 1(1)(d) visit was to be arranged it was done in advance by telephone. If possible a person with knowledge of the premises was to be available to accompany the Fire Brigade personnel around and supply information on the building, its contents and processes[1549].
18. It would be normal practice, after a visit, for the section 1(1)(d) report to be shown to the occupier and any material changes approved[1550]. Matters affecting fire precautions and giving rise to concern were to be brought to the attention of the occupier, whom failing the fire prevention department (and, in extreme cases, there Fire Prevention Officer was to be called)[1551].
19. In relation to pre-planning of section 1(1)(d) visits or inspections, the guidance stated that personnel should be encouraged to participate in the inspection by being delegated to gather information on specific matters, such as inter alia access to and within the premises, and the location in the premises of employees or residents[1552]. It was critical that operation personnel had information relating to such matters because they might attend an operational incident at the premises, and the information was for their benefit[1553].
20. So far as access was concerned the kind of things that would be looked at during a visit would be the main entrance, the easiest means of vehicular access, access to upper and lower floors, doors and windows[1554].
21. A sign of the kind seen on photograph 887A (containing the phrase "Vehicular access via Rosepark Avenue") was the sort of detail that one would expect to be picked up on and noted in the records[1555].
22. During a visit or inspection it was important to establish where the fire alarm panel was situated because that is where the Fire Brigade would normally first attend and meet with the responsible person. The panel designates where the alarm sounded and therefore gives valuable information to the attending fire crews[1556].
23. At least in the view of Ian Falconer, who was named as the officer in charge of the first section 1(1)(d) visit to Rosepark, it was important to know as much as you could in advance of any incident about the whereabouts in a building of the life risk. This was because unfamiliarity with the whereabouts of the life risk could lead to the committing of crews to the wrong parts of the building[1557].
Visits/Re-inspections at Rosepark prior to the Fire
24. The date of the initial inspection of Rosepark is probably incorrect. The officer in charge, Ian Falconer, thought that he was based at Bellshill Fire Station between October 1995 and June 1996. Subsequent reference to a police statement caused him to revise those dates to June 1995 and June 1996[1558]. He did carry out a familiarisation visit during the mid 1990s[1559], so it may in fact have been on 21 August 1995[1560].
25. Mr Falconer stated that, during the visit he checked the premises for vehicular and appliance access. In fact, when he attended for his familiarisation visit, Mr Falconer arrived via Rosepark Avenue[1561]. He recalled that the driveway to the east of the building (viewed from New Edinburgh Road) had a fairly significant incline which might have implications for access by appliances. No concerns about the New Edinburgh Road entrance were recorded in the section 1(1)(d) report[1562].
26. The life risk numbers were night time were recorded as being 42 residents and 4 staff. That was the kind of detail that would be amended by the process of re-inspection if the numbers changed. The ratio of staff to residents would tell you that, in a search and rescue situation, you may require further resources if it was a serious fire[1563].
27. There was nothing in the section 1(1)(d) report to indicate any impediment in access via either of the routes that might take one to the main entrance[1564]. Mr Falconer initially thought there was plenty of access for a fire appliance via New Edinburgh Road[1565]. Under reference to production 887H, Mr Falconer said that he did not know whether, as a matter of fact, an appliance could access the main entrance; it would be very restricted and you would have to physically try it. In his visit to Rosepark there was no attempt made to drive up from New Edinburgh Road[1566].
28. Mr Falconer recalled attending a lecture relative to the section 1(1)(d) report for Rosepark. The lecture was a talk through the inspection report, in which such matters as hazards, access points, AFA systems and persons resorting would be covered[1567].
29. Jeremy Eckford was a Station Officer at Bellshill between 1994 and 1997[1568]. The principal matters that would be looked at in a section 1(1)(d) visit would be (i) access and egress, (ii) water supplies, (iii) the character of the building, and (iv) other local circumstances affecting the buiding being inspected[1569].
30. Generally, the full operational watch would attend at a section 1(1)(d) visit. The purpose of that was to familiarise all members of the watch with the characteristics of the building[1570]
31. Mr Eckford was officer in charge of the visit on 28 May 1997. A training lecture appears to have occurred on the same date[1571] Mr Eckford had no recollection of any circumstances arising at the visit which would have caused him to amend the section 1(1)(d) report. The kinds of issues that his visit would have covered were those set out in the OTN A6[1572]. If there were particular problems with a building a training exercise might be held there, as contemplated in paragraph 6.1 of the guidance[1573]. There is no evidence that such an event occurred at Rosepark.
32. Daniel Longmuir was a Station Officer based at Bellshill for some 7 years prior to 2003[1574]. He was the officer in charge of green visit when it visited Rosepark on 14 January 1998. Although described as a re-inspection visit it was nonetheless a familiarisation visit for the watch. The general idea was that, if a fire occurred, firefighters would have an idea of the layout, emergency doors, escape doors, and best means of entry[1575]. Mr Longmuir would check the figures for life risk. There was an entry in the record of visits and re-inspections indicating "no change" for the visit on 14 January 1998. That meant that no amendments required to be made to the record following the re-inspection. Mr Longmuir was also the officer in charge on the occasion of a re-inspection of Rosepark on 16 September 2000; again, no change was reported. Mr Longmuir could not recall if any concerns arose over access at either of the re-inspection visits, although access to the building would have been looked at. Had there been any concerns they would have been recorded in the section 1(1)(d) record. On question Mr Longmuir might ask was which of the external doors was the easiest of access[1576].
33. The lectures referred to in production 182, page 3, were more in the nature of discussions which tended to consider a number of different premises[1577].
34. Desmond Keating was a Station Officer based at Bellshill during the 1990s[1578]. He identified himself as having been officer in charge at the time of the lecture on 17 November 1997. The lecture to red watch would have involved going through practically all the details of the section 1(1)(d) report[1579]. One of the details covered would be knowledge of the number of residents. This would let you know the level of assistance you would need off other Fire Brigade units if you had to evacuate that number of residents in a fire[1580]. Mr Keating had no recollection of attending a section 1(1)(d) visit to Rosepark[1581]. Mr Keating's sub-officer, David Fleming, identified that he was the officer in charge in connection with a lecture on the Rosepark section 1(1)(d) dated 24 October 1998. Mr Fleming explained that the lecture was in the nature of a familiarisation with the premises, the routes to the premises, and the services at the premises. It was important that the watch was kept up to date on such matters, including the route to get to the premises concerned[1582].
35. Mr Fleming had a recollection of visiting Rosepark on a section 1(1)(d) visit. He said that access to the premises, and the route to it, would be matters that would be looked at. Under reference to production 182, page 4, Mr Fleming agreed that the address on the inspection form contained reference to both New Edinburgh Road and Rosepark Avenue.[1583] In relation to access Mr Fleming would interested to establish the main route into the premises and whether it is clear at all times, whether you could access the premises readily and quickly and whether the premises were kept locked[1584].
36. Mr Fleming agreed that the aim of the section 1(1)(d) process of familiarisation was to make all personnel on the watch conversant with the premises that they may have to attend[1585].
37. Alexander Anderson was stationed at Bellshill between 1997 and 2000. He was a member of white watch[1586].
38. Mr Anderson confirmed that he delivered the lecture which, in the section 1(1)(d) records for Rosepark[1587], is dated 7 November 1998. At the lecture the members of the watch would discuss access, water supplies, and the characteristics of the building. The lectures could be combined with a visit[1588]. Any concerns about access to, and within, the premises would be noted in the section 1(1)(d) records[1589]
39. Mr Anderson confirmed from the records that there was no lecture recorded after 18 February 2000. The last lecture for blue watch was recorded as 8th September 1998. While the training lectures may have involved 6-12 premises at a time, their occurrence would be noted in the section 1(1)(d) records for each building[1590].
40. Michael Wilson formerly served with SF&R before retiring in March 2005 as a Leading Firefighter, green watch. For the last 20 years of his career he was stationed at Bellshill[1591].
41. Mr Wilson was probably in attendance at two section 1(1)(d) visits, namely those dated 14 January 1998 and 16 September 2000[1592]. He was, in any event, familiar with Rosepark as his father was in the home.
42. Mr Wilson gave two lectures on Rosepark, namely those dated 9 December 1996 and 1 November 1999. During the lectures the watch would be made familiar with the number of people in the home, where the main electrical intake would be, where the residents would gather during the day, and where all the bedrooms were (and on what levels)[1593].
43. James Muir was a Sub Officer stationed at Bellshill in April 2002, attached to white watch. He was present at the section 1(1)(d) visit by white watch to Rosepark on 24th April 2002, and standing in for the Station Officer[1594].
44. The crew arrived at the front door on the upper level, introduced themselves, and walked through the home. They arrived by way of Rosepark Avenue. It was probably the driver of the appliance who would have made that decision[1595].
45. Mr Balmer was present at Rosepark but not involved in the visit itself, the purpose of which was to ensure that the details on the section 1(1)(d) records were accurate, and to give the watch members a better idea of the layout of the premises than could a line drawing[1596]. The plans were of the building were still of interest in pointing out the location of the water hydrants, and the gas and electrical shut-offs. Mr Muir would have understood the cross corridors to be fire doors[1597].
46. At a section 1(1)(d) visit, any matters raising fire safety concerns would be rectified on the spot, if they could be, which failing reported to the Fire Safety Department. There was no reason to think that there were any issues of concern on the visit to Rosepark[1598]
47. Mr Muir agreed that the fullest use should be made of the information gathered through section 1(1)(d) work, its purpose being to make people conversant with the risk premises that they visit[1599].
48. There was nothing in the section 1(1)(d) records indicating that Rosepark Avenue should be the preferred means of access[1600].
49. Mr Muir could not recall seeing gates in the driveway from New Edinburgh Road. If he had seen closed and locked gates he would not have taken any further action. It would not have affected the residents' means of escape, although it would have affected the means of access to the building. During the visit Mr Muir did not go down the driveway[1601].
50. Mr Muir thought that the visit had lasted about 10 minutes[1602].
51. Robert Deans served on red watch as a Station Officer at Bellshill Fire Station between 2001 and 2004[1603].
52. Mr Deans confirmed that there would be folders containing the section 1(1)(d) records onboard the Bellshill appliance[1604].
53. Normally a section 1(1)(d) visit would be arranged about one week in advance[1605].
54. Mr Deans identified the date that he visited Rosepark as being 3 July 2000. The section 1(1)(d) records show that there was a full crew visit and a re-inspection undertaken on that date. Mr Deans' view was that together they represented a "visitation rather than an inspection". There was a full crew attendance on that date and no change was called for in the records[1606].
55. When they attended on 3 July 2000 Miss Meaney at Rosepark to meet them. Mr Deans estimated that the visit may have lasted between 20 and 30 minutes[1607].
56. The visit would have followed the normal procedure, which was as follows. The officer in charge would explain to the person meeting the crew what the purpose of the visit was. The purpose was purely to familiarise the crew with the character of the building. Mr Deans would give the section 1(1)(d) record to one of the other firefighters to carry around. The crew would then look at the layout of the building. Any differences between what was observed and what was on the plan would be drawn to the attention of the staff[1608].
57. Access to and within the building was something that would be covered in the visit and any changes would be noted in the section 1(1)(d) records[1609].
58. If there was anything that stood out as being not right you would bring it to the attention of the representative of the home, even although the primary reason for being there was familiarisation[1610]. Mr Deans appeared to recall that the corridor fire doors were closed although they visited during the day. No issue arose which might have merited a reference to the Fire Safety Department[1611]. As far as bedrooms were concerned, the visiting fire officers would see of the general layout corresponded with what was on the plan[1612].
59. Matters of interest on the plan in the section 1(1)(d) records for Rosepark included the electrical intake and gas shut-off (so one knew where to shut the supplies down), the presence of the cross corridor doors, and the location of the bedrooms (where, during the night, the residents are going to be located)[1613].
60. Confirmation of any significant material changes would be sought from the person showing the fire officers around. It is probable that such confirmation was sought from Ms Meaney on the occasion of the visit in July 2003[1614].
61. Mr Deans assumed that the visit in July 2003 would have included the lower level as well as the upper level[1615]. By reference to a police statement dated 19th February 2004, Mr Deans was able to confirm that the visit involved a walkthrough of the premises guided by Sadie Meaney. Amongst other things, Mr Deans was interested in the location of the fire alarm panel, to ensure that the zones of the alarm were clearly displayed at the alarm panel to assist firefighters in the event of a fire. In that respect Mr Deans stated that after being met at the door the first thing he would do at an incident would be to go to the fire alarm panel[1616].
62. Mr Deans recalled being invited by Ms Meaney to view her records of fire safety training. He told her that that was not the purpose of the visit. Mr Deans did, however, state that although the visit was not an inspection he would have been vigilant for breaches of fire safety procedure. If there had been such breaches Mr Deans would have pointed them out to Ms Meaney and, if significant, he would have reported them to the Fire Safety Department. Mr Deans found no obvious breaches of fire safety, and no change in the layout of the building such as would have justified a new section 1(1)(d) form[1617].
63. On the matter of access Mr Deans and his crew arrived via Rosepark Avenue. This took them to the main entrance. They went by this route because of local knowledge amongst the crew[1618]. Otherwise the plan in the section 1(1)(d) records did not direct a particular address and the inspection report[1619] referred to both New Edinburgh Road and Rosepark Avenue. Mr Deans was aware of the access from New Edinburgh Road. He did not examine it on the occasion of his visit. However, there were gates which Mr Deans remembered were shut[1620]. Under reference to production 887B Mr Deans thought that this was the only occasion when he had ever seen the gates in the open position[1621]. Mr Deans did not remember the larger gates further up the drive. He would have been concerned about access if they had been locked[1622]
64. The existence of gates on the drive from New Edinburgh Road was not a matter which Mr Deans would have raised with management because he there was an access via Rosepark Avenue[1623]. Nor was any issue about access raised in a new section 1(1)(d) report. The result of the re-inspection on 3 July 2003 was "no change".
Concluding observations
65. The purpose of the section 1(1)(d) visits was to familiarise firefighters with local premises deemed to merit such familiarisation.
66. To the extent that there was any "inspection" of the premises it was confined to (i) an exercise of confirmation that the section 1(1)(d) records held on any particular premises were up to date; (ii) updating the section 1(1)(d) records to reflect any material changes in circumstances, and (iii) rectifying any breaches in matters of fire safety, or referring them to the Fire Safety Department, where the existence of such breaches were obvious to those taking part in the visit.
67. The guidance contained in OTN A6 enjoined firefighters to have regard to the issue of access to section 1(1)(d) premises. No issues of concern about access at Rosepark appear to have arisen in the minds of any of the officers who gave evidence to the Inquiry. At the most recent visit before the fire Mr Deans recalled observing closed gates at the bottom of the driveway leading from and to New Edinburgh Road. His recollection is consistent with the evidence of Thomas Balmer to the effect that the gates down at New Edinburgh Road had always been kept shut (and locked) to deter unwanted pedestrian access[1624].
68. Mr Deans did not consider that the presence of gates on the driveway from, and to, New Edinburgh Road would have caused him to raise the matter of access with the management of Rosepark. This was because of the existence of access via Rosepark Avenue.
69. It would have been beneficial to have resolved the question of access at that time. Although the Rosepark Avenue route was upgraded at some point during the first few months of 2003, that was to enhance access for a new building that was in contemplation. The existing access had been adequate[1625]. It is apparent from the section 1(1)(d) records that the Rosepark Avenue entrance had been noted[1626] but no steps had been taken to prove the New Edinburgh Road access. The matter of which was the more appropriate access was left unresolved. However, under reference to the submissions of SF&R the following points should also be borne in mind; 1. The utility of the driveway has to be seen in the context of Mr Caldwell's evidence that he drove into the driveway a certain distance. He looked up the access road at the side of the building and thought that it looked tight for his appliance. He also referred to an overhang and the fact that there were ladders on top of the fire engine[1627]. That sort of uncertainty cannot be desirable at the time of an incident. The evidence of Sir Graham Meldrum, referred to in the submissions of SF&R[1628], was given before he had had put to him the terms of Mr Caldwell's evidence. 2. There may have been congestion in Rosepark Avenue from time to time but there is no evidence that that presented itself as a concern to any of the fire officers whose evidence is summarised above. 3. The advantage of an access via Rosepark Avenue was that it led directly to the main entrance and the location of the fire panel, which was the first thing Mr Deans would go to after being met at the door[1629]. That being so, Rosepark Avenue was the appropriate route for vehicular access[1630]. 4. Familiarity with the premises resulted in the watches who attended Rosepark in 2002 and 2003 attending via Rosepark Avenue[1631]. 5. While it cannot, of course, be guaranteed that more frequent (in the sense of annual) visits to Rosepark would have had the consequence that the members of blue watch on 31st January 2004 would have known to go to Rosepark Avenue (as did red watch in July 2003), greater frequency of visits would have improved the chances of that result considerably, especially of there was a reference to "Rosepark" in the additional information on the turn out slip. As it was, only one member of blue watch (not the Officer in Charge) had been to Rosepark perhaps two or three years before, and his recollection of the visit was vague[1632].
70. A familiarisation visit was not a fire safety inspection in disguise. Operational personnel who went on familiarisation visits were not trained to carry out fire safety checks[1633].
71. Section 1(1)(d) was concerned with information required for fire-fighting purposes. Its purpose was exactly in accordance with the understanding of Mr Lynch of Lanarkshire Health Board:
"That would be [where] a fire appliance and its crew visit an establishment and walk round looking for fire hydrants...getting familiar with the building...familiarisation for themselves without any paperwork requirements. Purely a familiarisation visit on their part"[1634]
72. It follows that any assumption on the part of Lanarkshire Health Board that Strathclyde Fire and Rescue Service were undertaking a regular and more rigorous form of inspection of fire precautions in nursing, or care, homes was mistaken[1635].
Risk Catagorisation of Rosepark
1. On 27th December 2000, an operational firefighter, Mr Edward Kelly, visited Rosepark[1636].
2. Mr Kelly was on alternate duties at the time, having sustained a knee injury. He was undertaking risk assessments at premises such as nursing homes and small hotels. The details of the assessments were noted down from observations made by Mr Kelly on a document called an ORA/1[1637].
3. Mr Kelly did not know the purpose of this risk assessment exercise. He was simply asked to go and do them as part of his alternate duties. Otherwise he would not have been involved in such tasks[1638]. Brian Sweeney defined the task as re-advising the risk of the premises and advise the information that would be contained on the VMDS which was introduced in 2001[1639]
4. Mr Kelly returned the paperwork that he prepared to someone in Hamilton Headquarters called Murdo Macleod to feed into computers. Mr Kelly thought that this was part of a process of building up a dossier of material on different places, ultimately for the VMDS system[1640].
5. Mr Kelly's training for the exercise of gathering information involved going out with another officer, possibly Eddie Ramsay, for a couple of days. There was no formal training[1641].
6. The Risk Assessment Form completed by Rosepark was production 1089. On page 2 (manuscript) of the ORA/1 it was confirmed that Rosepark fell within the station area of Bellshill[1642].
7. On the same page 2, Mr Kelly had placed a tick in the box for "B" at the section concerning "Risk Category". Mr Kelly did so because the risk categories went from high to low. Mr Kelly took the view that due to the amount of people who would need assistance in an evacuation the category should be "pretty high". Accordingly he ticked "B"[1643].
8. Mr Kelly understood that "A" related to highly volatile places like large factories, where chemicals and cylinders were stored, and petroleum places. "D" related to small places like ships and rural areas. Mr Kelly did not know whether his choice of category would have any implications for Fire Service coverage. His personal view was that he would have preferred a 3 to a 2 pump attendance at nursing homes. Mr Kelly did not, however, know whether that would be the effect of ticking "B" on the ORA/1[1644]. He chose "B" because there was a lot life risk involved in a nursing home[1645].
9. Mr Kelly confirmed, by reference to the Report of the Joint Committee on Standards of Fire Cover, 1985[1646], that pre-determined attendance for categories A, B, C and D were, respectively, 3, 2, 1 and 1, there being certain targets in terms of how quickly appliances were required to attend[1647].
10. Mr Kelly knew how to categorise premises from his general experience as a firefighter rather than by reference to any guidance[1648].
11. In the result, Mr Kelly's assessment of an enhanced attendance was proved correct by reference to the grading criteria contained in "Revised and Consolidated Guidance on the Categorisation of Risk"[1649]. The result of applying those criteria brought about a PDA of 2, which was the same as a PDA for an area categorised as B[1650]. The surrounding area was category C[1651]. Accordingly there was an enhanced PDA for Rosepark of two appliances[1652].
12. In section 1 of the ORA/1 Mr Kelly entered "2" for the pre-determined attendance for Rosepark. That was just information he had as an operational firefighter[1653]. In section 2(g) (page 5) Mr Kelly confirmed that he had identified the protected doors and corridors at Rosepark. In section 2(j) fire loading was entered as "low" but Mr Kelly was unsure what this meant[1654].
13. Mr Kelly looked during his visit for the presence of fire doors, extinguishers and hose reels[1655].
14. At section 4.1 "Access" Mr Kelly ticked "yes" to the question "Can full PDA gain easy access to the site?"[1656]. Mr Kelly's assessment would be based on a visual assessment that there was plenty room for the appliances to get in. If there was a way they could not get in then that would have been noted down on the form. Mr Kelly noted "foot only to rear" of the building[1657].
15. Mr Kelly had difficulty recollecting by which route he had accessed the main entrance and to what part of the premises the note related. The address he noted on the ORA/1 was New Edinburgh Road. That was information he obtained from the staff[1658]. Ultimately, his position appeared to be that the rear was the garden area to the left of the premises in production 887B[1659]. He thought that two appliances could get up the driveway but he would need to have paced out the ground to be sure. Mr Kelly could not recall if he did this. He did not notice any gates[1660].
16. Mr Kelly also considered there to be a disorientation potential (primarily for residents) due to the "complexity" of the premises[1661].
17. On page 17 of the ORA/1 Mr Kelly made reference to the maximum and minimum sleeping risks (43 and 40 respectively)[1662].
18. Mr Kelly had heard of, but was not familiar with, the guidance contained OTN A6, and in particular the reference in paragraph 3.2 to "special risk" premises (as defined in paragraph 5.2.4). Mr Kelly was not aware that there was a category of special risk premises as defined in OTN A6[1663].
19. Mr Kelly recalled "Operational Technical Note, Index Number A83, Operational Risk Information", issued April 2001. Section 4 was concerned with processing information. It provided that the information gleaned from the assessment was collated within the Risk Management Unit of SF&R and placed on a database[1664]. Mr Kelly agreed that his exercise at Rosepark formed part of the process of review of section 1(1)(d) information as set out on page 3 of production 1409, and that the information would end up in the VMDS system[1665].
20. The risk assessment exercise in December 2000 provided an opportunity to categorise Rosepark as "special risk" for the purposes of securing an annual familiarization visit by each watch at Bellshill[1666].
21. Sir Graham Meldrum gave evidence to the Inquiry under reference to the ORA/1 completed by Mr Kelly, and associated guidance.
22. In his opinion the guidance in production 1409, OTN A83, placed insufficient weight on the life risk at Rosepark, and in particular the sleeping non-ambulent risk[1667].
23. The information about non-mobile and sleeping risks, and employee numbers contained in page 17 of the ORA/1 should not have produced the result that Rosepark was considered a low risk building. The possibility of 43 non-mobile people ought to have been a weighting factor that needed to be taken into consideration when allocating a risk rating[1668].
24. With the possibility of having to evacuate 43 non-ambulent people at night, with only 4 staff on duty, it was difficult to see how Rosepark could have been considered low risk. Although SF&R' approach to selecting a PDA of 2 could not be criticised[1669] Rosepark should have been regarded, for the purposes of paragraph 5.2.4, as "special risk". Where there were upwards of 40 residents in a care home, Sir Graham Meldrum's opinion was that that constituted "large" for the purposes of the guidance. His opinion was based on the number of residents, the number of staff on duty at night, and the degree to which some residents would need great assistance in the event of an evacuation[1670].
25. The main effect of designation of Rosepark as "special risk" would have been in relation to the frequency of familiarisation visits. There would be an annual visit by each watch[1671].
26. As matters transpired, the last occasion on which Blue Watch at Bellshill Fire Station was recorded as having attended at Rosepark for a visit was 19 August 1999, in excess of 4 years before the fire[1672]. Blue watch last attended a lecture concerning Rosepark on 8th September 1998[1673]. There was no record of a lecture about Rosepark to any of the watches at Bellshill after 18th February 2000[1674].
27. The appropriate route for vehicular access was Rosepark Avenue. That was the route that took one directly to the main entrance and the fire alarm panel. The location of the fire panel was relevant in any determination of the most desirable means of access because the officer in charge of any incident would be looking to see where the fire was located[1675].
28. Since at least 2002 a sign stood at the New Edinburgh Road advising of vehicular access via Rosepark Avenue[1676].
29. It was, in the opinion of Sir Graham Meldrum, difficult to understand why the issue of the address and access had not been dealt and recorded on any risk related document, including section 1(1)(d) records, or indeed the VMDS system[1677]. It was an issue that ought to have been resolved whatever the categorisation of the premises[1678]. If Rosepark had been the subject of annual re-inspection it is likely that the crew of the Bellshill appliance would have been familiar with the access to the building[1679].
30. Sir Graham's opinion is all the more compelling when one comes to consider that Mr Falconer, Mr Muir and Mr Deans all spoke to arriving via Rosepark Avenue for their section 1(1)(d) visits. It is highly instructive that Mr Deans spoke to that having transpired on account of "local knowledge" of the crew[1680]
31. If there had been annual visits by each watch after Mr Kelly's assessment in 2000 there would have been much greater opportunity for Blue Watch to have become familiar with Rosepark, and the access thereto. There might, therefore, have been avoided the situation which confronted Mr Caldwell, the driver of EO31, on the night of the incident. Mr Caldwell was unsure whether whether there was room to turn at the top of the drive[1681]. Matters of that kind should have been resolved by the process of section 1(1)(d) visits[1682]. In short, the crew of E031 would have known where to go.
32. Rosepark would not, according to Jeff Ord, have been considered a special risk for section 1(1)(d) purposes[1683]. The sorts of matters that would be considered relevant to an assessment about "special risk" were the type of construction of the building, the size of the building, the processes, whether any business conducted there was of a hazardous nature, and whether the building was high or low rise[1684].
33. The track record of individual premises, the size, type of construction, fire detection equipment, CCTV and whether or not the premises were staffed 24 hours a day were all relevant considerations[1685]. Historically, nursing homes were not thought to be at high risk of fire[1686]
34. Brian Sweeney had personal experience of the processes of risk assessment and risk categorization under section 1(1)(d). In 1993/4 he initiated a review of the information on premises held by SF&R, leading to the creation of the Risk Management Unit and the VMDS system[1687].
35. According to Mr Sweeney, each watch would attend a section 1(1)(d) building once every 4 years. There would be one lecture for each watch annually[1688].
36. The Divisional Commander would have had responsibility for defining buildings in his area which were deemed to be of significant risk to justify inclusion in the section 1(1)(d) premises to be visited[1689].
37. Mr Sweeney thought that the premises which came under section 1(1)(d) were premises which posed a significant risk to firefighters[1690] only (as opposed to persons occupying or resorting there). The statutory basis for that understanding is unclear. He accepted that the definition of "special risk" in OTN A6 was broader and encompassed risk to property and persons other than just the attending firefighters[1691].
38. The guidance in 0TN A6 afforded the facility to define particular premises as "special risk" without altering the risk categorisation of the surrounding area[1692]. Rosepark attracted a PDA in excess of the one appliance which would be normal in the surrounding category C area[1693].
39. Under reference to OTN A6 Mr Sweeney's evidence was that there were two parts to the assessment of a care home as "special risk"; (i) was it a large residential care home (and that should be considered in context), and (ii) were the risks abnormal (which introduces an element of the subjective to the exercise)[1694].
40. In Mr Sweeney's view Rosepark would correctly be described as a medium sized care home. In Strathclyde there were about 220 homes which were either the same size, or larger than Rosepark. Forty of them were double Rosepark's size. The risks presented by Rosepark could be considered as "normal and consistent". The definition of "special risk" was open to interpretation. By defining Rosepark as "special risk" would be the equivalent of adding to the existing 100 risk premises 223 care homes. Mr Sweeney didn't professionally disagree with Sir Graham Meldrum on whether Rosepark should have been designated "special risk". But it was a matter of subjective judgement[1695].
41. A consideration in determining whether a building should be "special risk" or not was the life risk to whoever may be on the premises[1696].
42. Although the submissions of SF&R on the matter of risk catagorisation relate principally to chapter 44(5) it is expedient to respond at this point.
43. The issue of whether Rosepark was to be regarded as "special risk" is not rendered academic by the decision to increase the pre-determined attendance and increase the number of familiarisation visits per watch to one per year. It remains relevant as an issue for the purposes of determining whether there were any reasonable precautions which might have avoided the deaths, or some of them.
44. It is readily acknowledged that Mr Sweeney was well qualified to speak to the processes of risk catagorisation[1697]. He very fairly did not seek professionally to disagree with the views expressed by Sir Graham Meldrum, the matter being one of subjective judgment. Whether subjective or not it is, however, submitted that there are grounds for supporting the view that catagorising Rosepark as "special risk" would have been a reasonable precaution to have taken in light of the information gleaned from Mr Kelly's exercise. The principal ground arises from the possibility of 43 elderly people being under the care of only four members of staff at night, many (if not all) of whom would need assistance in the event of an evacuation. That situation is relevant to both of the criteria for "special risk" in OTN A6. Moreover, the concern that ascribing "special risk" to nursing homes would have added 223 such homes to the existing 100 special risk premises in Strathclyde is met by the fact that that is what was subsequently done (thereby lending support for the view that such a precaution would have been reasonable[1698]). As to whether at the time of the fire there had never been a multiple fatality fire in a nursing home, it is submitted that "abnormal risk" required consideration to be given to the consequences for residents and staff of a fire which did occur. As it was expressed by Sir Graham Meldrum "...when you're talking about care homes, the risk is...related to the time taken to evacuate that building should a fire occur in it, not to say it's a high risk of fire itself, but if a fire takes place, it's a higher risk"[1699]. Sir Graham agreed that the definition of a large care home was a matter of local interpretation[1700]. However, he also made the point that size could not simply be approached in terms of physical dimensions. What was important was that consideration was given to the type of resident, the type of building, and the amount of staff on duty[1701]. When undertaking the exercise of interpretation it was important to consider, simulate even, the type of incident that might develop, on a worst case scenario[1702]. In the circumstances it is submitted that a special risk catagorisation would have been a reasonable precaution.
45. As far as pre-determined attendance is concerned it is acknowledged that the evidence was that a PDA of two appliances was normal for premises like Rosepark at the time of the fire, and that that level of attendance was in itself enhanced when compared with the surrounding area[1703]. Sir Graham Meldrum was not disposed to criticise that level of enhancement. There is no evidence otherwise to indicate that a further enhanced pre-determined attendance would have been reasonable at the time, although it is difficult to avoid the conclusion that in the circumstances of the fire at Rosepark such an additional appliance would have been a valuable additional resource. But it is important to recall that "special risks", for the purposes of OTN A6[1704], "can be defined as those which need a first attendance over and above that appropriate to the risk which predominates in the surrounding area". The evidence is that that Rosepark met that definition because the PDA was over and above that applicable to the surrounding area. However, as paragraph 3.2 of the guidance makes clear, premises which are designated "special risk" should also be visited by all watches annually.
CHAPTER 26 (Formerly 22B): THE INTERACTION BETWEEN ROSEPARK AND LANARKSHIRE HEALTH BOARD ("the Health Board") 1992-2002
The purpose of this chapter is to provide a detailed factual narrative of the interaction between Rosepark and the Health Board between 1992 and 2002 (after which the Health Board ceased to have any regulatory responsibilities for nursing homes). It will examine the statutory, and non-statutory, framework under which the Health Board operated; consider, and draw conclusions from, the approach of the Health Board to compliance with its statutory responsibilities, and summarise the inspection history of Rosepark.
The narrative in this chapter is intended to support the determination under section 6(1)(d) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the 1976 Act") proposed by the Crown in chapter 45(5) of these submissions.
1. Statutory Framework
Nursing Homes Registration (Scotland) Act 1938
1. Section 1 of the Nursing Homes Registration (Scotland) Act 1938[1705] ("the 1938 Act") established the involvement of local Health Boards in the process of registration of private nursing homes.
2. Section 1(1) of the 1938 Act made it an offence to carry on a nursing home without being duly registered.
3. Section 1(1A) of the 1938 Act made it an offence to carry on a nursing home in contravention of a condition of registration.
4. Section 1(2) of the 1938 Act provided that application for registration was to be made in writing to the Health Board in whose area the home was situated.
5. Section 1(3) of the 1938 Act provided for registration by the Health Board and certain grounds upon which the Health Board could refuse registration.
6. Section 1(3D) of the 1938 Act provided that "[I]t shall be a condition of registration of any person in respect of a nursing home that the number of persons kept at any one time in the home...does not exceed such number as may be specified in the certificate of registration."
7. Section 1(3F) of the 1938 Act conferred on the Health Board the power to vary any condition of registration (including a condition relating to the number of persons kept on the premises).
8. Section 1(4) of the 1938 Act provided for the public display of the certificate of registration in a conspicuous place in the home.
9. Section 2(1) of the 1938 Act provided inter alia that "[S]ubject as provided in this Act the Health Board may by order at any time cancel the registration of a person in respect of any nursing home on any ground which would entitle them to refuse an application for the registration of that person in respect of that home...".
10. Section 3A made provision for the conduct and inspection of nursing homes. Thus it provided that "[T]he Secretary of State may make regulations
(a) as to the conduct of nursing homes;
(b) with respect to entry into and the inspection of premises used or reasonably believed to be used as a nursing home;
(c) with respect to the production and inspection of records required to be kept under this Act,
and regulations made under paragraph (a) above may include provisions as to the facilities and services to be provided in nursing homes."
11. Further provision in respect of regulations was made in section 4, in particular with regard to the content of records to be kept by nursing homes.
12. Section 10(2) of the 1938 Act, so far as relevant, defined "nursing home" as "any premises used, or intended to be used, for the reception of, and the provision of nursing for, persons suffering from any sickness, injury or infirmity."
13. The exclusions from the definition of "nursing home" in section 10(3) of the 1938 Act plainly do not apply to Rosepark.
14. Rosepark was a "nursing home" within the meaning of section 10(2) of the 1938 Act and underwent the process of registration accordingly.
Nursing Homes Registration (Scotland) Regulations 1990
15. The regulations current at the time when Rosepark opened for business were the Nursing Homes Registration (Scotland) Regulations 1990[1706] ("the 1990 Regulations"). They came into force on 27th July 1990[1707].
16. The 1990 Regulations were made pursuant to inter alia sections 3A and 4 of the 1938 Act.
17. Regulation 1(2) contained certain relevant definitions. Thus:
"authorised person" meant any person, who in the opinion of the Health Board was suitably qualified to undertake any inspection for the purposes of regulations 11 and 12 of the 1990 Regulations[1708];
"fire authority", in relation to a nursing home, meant the Health Board for the area in which the nursing home named in the application was situated;
"nursing home" was defined by reference to section 10(2) of the 1938 Act;
"person in charge" meant, so far as relevant to Rosepark, a qualified nurse upon whom had been conferred by the person registered responsibility for the overall day-to-day running of the nursing home[1709];
"person registered" meant the person registered under the 1938 Act as carrying on the nursing home named in the application for registration;
"record" meant any book, card, form, tape, x-ray, computerized document, film or note kept pursuant to the requirements of the 1990 Regulations;
"register" meant an ordered collection of details prepared and maintained in accordance with the 1990 Regulations (which may have included one or more parts).
18. Regulation 2 confirmed that an application for registration required to be submitted to the Health Board in the required form.
19. Regulation 8 was concerned with fire safety and equipment maintenance records. It is worthy of quotation in full:
"(1) The person registered shall maintain or cause to be maintained a record of-
(a) every fire practice which takes place at the nursing home;
(b) every fire alarm test carried out at a nursing home together with the result of that test, and all defects in procedure or equipment or conditions found as a result of every such test;
(c) action taken to remedy any of the said defects, and dates of completion of works resulting from such action; and
(d) procedures to be followed in the event of fire.
(2) The person registered shall maintain or cause to be maintained with respect to medical, surgical, nursing, fire and safety equipment in the nursing home such record, as is reasonable or appropriate in the circumstances, of dates of acquisition and of disposal of, condition at acquisition of, and dates of maintenance checks and the nature of repairs carried out on, such equipment.
(3)Each of the records maintained in pursuance of paragraph (1) or (2) shall be retained at the nursing home by the person currently registered for a minimum period of 3 years from the date of the last entry in it."
20. Regulation 10 made provision for the appointment of a "person in charge".
21. Regulation 11 of the 1990 Regulations made provision for the appointment of "authorised persons". Regulation 11(2) conferred, on such authorised persons, powers of entry and inspection in respect of nursing homes, and also power to require the production for inspection of records maintained in accordance with the 1990 Regulations.
22. Regulation 12 of the 1990 Regulations made provision for (at least) twice yearly inspections of registered nursing homes.
23. Regulation 13(1) of the 1990 Regulations was in the following terms:
"(1) In respect of a nursing home which is registered under the Act, the facilities provided, precautions taken and arrangements made, all as described in this regulation, shall be of a standard which the Health Board reasonably considers to be sufficient and suitable in the circumstances of the particular nursing home, which standard shall be maintained for so long as the registration remains in force"
24. Regulation 13(2) provided inter alia as follows:
"The person registered shall...provide or make, as the case may be, to an adequate standard or level or number the following:-
(e) Fire fighting equipment...
(h) means of escape in the event of fire:
(i) fire drills and practices so that the staff and, so far as practicable, the patients in the home know the procedures to be followed in case of fire;
(j) permanently displayed notices explaining procedures in the event of fire..."
25. Regulation 13(3) provided inter alia as follows:
"The person registered shall...
(a) take precautions-
(i) against the risk of fire:
(ii) against the risk of accident;
(b) make adequate arrangements for detecting, containing and extinguishing fire, for the giving of warnings and for the evacuation of patients and staff in the event of fire."
26. Regulation 13(4) (f) of the 1990 Regulations obliged the person registered, at such times as may be agreed with the fire authority, to consult that authority on fire precautions in the home.
2. Relevant Non-Statutory Guidance
The Nursing Homes Scotland Core Standards[1710]
27. The Nursing Homes Scotland Core Standards were produced in about July 1997[1711].
28. Section 2 set out procedures which Health Boards would follow in undertaking inspection visits to registered nursing homes[1712].
29. Under the heading "Safety and Security" the Core Standards provided as follows:
"2.10 The Inspectors will:
-Ensure that security and safety measures are in place to meet the assessed needs of individual residents and staff.
- Examine fire notices, fire-fighting equipment and fire exits and escapes. If they are in any doubt about these items or any related aspect the Firemaster will be asked to visit as a matter of urgency and submit a report to the Board. The person registered or the person in charge will be advised of this fact and will receive a copy of the report. The person registered will be required to implement the Firemaster's recommendations.
-Examine arrangements for storing flammable materials and explosive gases.
-Examine that systems are in place to fulfil compliance with all duties imposed on Homes by the Health & Safety legislation and the Health and Safety Executive.
-Examine arrangements for the evacuation of the home and provision of adequate short and long term emergency accommodation.
2.11 The Inspectors will also examine the following documents:
-Register of fire training, fire practices, alarms and fire procedures and the fire safety equipment maintenance record;
-Accident and incident records (staff, residents and visitors)."
The Registration and Inspection of Nursing Homes for the Elderly[1713]
30. Lanarkshire Health Board issued guidance notes in about June 1999 entitled "The Registration and Inspection of Nursing Homes"[1714].
31. According to Margaret MacCallum, the guidance notes (and the Core Standards quoted above) were the main reference works used by the inspectors[1715].
32. Section 12.15-12.21 was concerned with "Safety and Security". It was in essentially the same terms as sections 2.10 and 2.11 of the Core Standards set out above.
33. Section 16 of the Guidance Notes was concerned with fire safety[1716]. The Guidance was in the following terms:
"16.1 Regulation 13(3)(a)(i) [of the 1990 Regulations] requires the person registered to take precautions against the risk of fire and Regulation 13(3)(b) requires the person registered to make adequate arrangements for detecting, containing and extinguishing fire, for the giving of warnings and for the evacuation of residents and staff in the event of fire.
16.2 Prior to the opening of the nursing home, staff should receive comprehensive training in fire safety and thereafter, attend at least one programme of training annually. Fire drills should be carried out on a regular basis but certainly once every twelve months. Staff training can be arranged with local Fire Prevention Officers, Records of all training lectures and drills should be kept, with each staff member present signing the record.
16.3 A log book must be maintained of alarm tests, which should be undertaken weekly by testing individual alarm points, and of monthly emergency lighting tests.
16.4 Fire fighting equipment must be checked and serviced at least annually, and records maintained.
16.5 Permanently displayed notices explaining procedures in the event of fire should be distributed throughout the home, particularly in public areas and in staff areas.
16.6 Any incidence of fire must be reported to the Health Board without delay."
3. Composition of the Health Board Inspection Team
34. .Rosepark was one of about 55 private nursing homes which fell within the inspection jurisdiction of the Health Board[1717].
35. Generally, the Health Board inspection team was made up of three individuals. One member had a nursing background. Another member was concerned with pharmaceutical matters. The third member of the team was an administrator[1718].
36. Throughout the period from the opening of Rosepark to April 2002 the Health Board, and its inspectors, had access to the advice of an Area Fire Safety Officer. This was principally Lance Blair, who took up his position with the occupational health and safety service known as SALUS in 1981 and remained there until 2002[1719]. He was succeeded by Andrew Walker[1720].
37. The inspectors did not receive any specific training in what they should be looking for as inspectors in terms of fire precautions in nursing homes. The training was either "on the job"[1721], or relied on the application of training previously given to the witnesses as employees rather than being targeted at the inspector's role[1722]. After appointment as an inspector, but in advance of actually starting, there was no training in the legislation[1723].
38. Neither Lance Blair nor Andrew Walker was involved in training the Health Board inspectors in their duties[1724]. In particular, Mr Blair was not involved in training the inspectors as to what constituted sufficient and suitable fire safety precautions and arrangements before they went out to inspect nursing homes[1725]. Yvonne Lawton, in particular, could recall no seminars relating to the issues which the inspectors were supposed to be looking at in terms of section 16 of the Health Board's own Guidance quoted above[1726]
4. Approach of the Health Board to its statutory responsibilities
39. It is important that a regulator is robust in setting standards in the sector it regulates and looking at matters of health and safety[1727]
40. It is, therefore, relevant to know how the Health Board approached compliance with its own statutory responsibilities under the 1990 Regulations.
41. The approach of the Health Board to compliance can be decerned in the evidence about the consideration given by the Health Board, and its inspectors, to the sufficiency and suitability of the following precautions against the risk of fire, namely-
(i) the procedure to be adopted by nursing home staff on the sounding of a fire alarm;
(ii) the frequency and content of fire drills, and
(iii) the positions of bedroom doors
Procedure on the sounding of a fire alarm
42. On this matter the Health Board did not appear to consider that it had a responsibility for considering the sufficiency and suitability of the procedure that was to be followed at Rosepark following the sounding of the fire alarm.
43. On the basis of the evidence set out below the Health Board's examination of the procedure at Rosepark was limited largely to a process of record checking. There appears to have been no analysis of the sufficiency and suitability of any procedure that actually existed at Rosepark.
44. The approach of the Health Board also appears to have been influenced by misguided assumptions about the role of the Fire Service in relation to nursing homes.
Edward Hattie
45. Until he retired in late December 1995, Mr Hattie was the Assistant Chief Nursing Officer for the Health Board[1728].
46. In that capacity he was team leader of the inspection team that visited private nursing homes[1729].
47. As inspection team leader Mr Hattie was responsible for making sure that nursing homes met the requirements of the guidelines of the Health Board[1730].
48. In relation to the period from 1992 to his retirement in 1995 Mr Hattie was asked to respond to the question "What role did you understand the Health Board to have in respect of the precautions to be taken and arrangements to be made by nursing homes in relation to fire, or the risk of fire?"[1731]
49. By way of response, Mr Hattie replied that the Health Board had a Fire Officer who would give the Board advice, and the Health Board had "the Fire Service's scrutiny. The Fire Service either ok'd it or didn't ok it".
50. Mr Hattie also appeared to have an understanding that the Fire Brigade would visit, and approve, the arrangements at nursing homes annually[1732]. The source of that understanding was obscure[1733].
51. In relation to the period 1992 to 1995 Mr Hattie was asked to respond to the question "What did the Health Board consider to be the appropriate procedure to be followed on the activation of a fire alarm in a nursing home?"
52. Mr Hattie replied that you would automatically call the Fire Brigade[1734].
53. Asked to consider the terms of the fire notice recovered from the vicinity of the fire door to corridor 1, production 656, Mr Hattie considered that he might take issue with certain matters of emphasis (such as bolder type for the direction to call the Fire Brigade at paragraph "f"). However, it was not apparent that Mr Hattie considered that the inspectors would look beyond the terms of the notices and consider the procedure adopted by Rosepark in practice. Indeed, the contrary was suggested by his answer to the question whether he would know that the procedure actually adopted at Rosepark on activation of the fire alarm was different to the order of events described in the notice. Mr Hattie said that he would not be aware of that[1735].
54. It is submitted that the existence of any discrepancy between the procedure adopted in practice by the management and staff at Rosepark on the occurrence of a fire alarm, and the terms of the publicly exhibited notices there, was just the kind of matter that inspection with an eye to the sufficiency and suitability of fire precautions in the Home should have revealed.
55. Mr Hattie's evidence was not such as to demonstrate that the Health Board considered that it had, or took, responsibility for considering the sufficiency and suitability of the procedure in place at Rosepark on the sounding of a fire alarm.
Thomas Lynch
56. Between 1996 and 2002 Thomas Lynch was the Professional Nursing Advisor to the Health Board[1736].
57. In that capacity Mr Lynch was responsible for the nursing homes registration inspection process. That responsibility extended to the registration and inspection of nursing homes within the Lanarkshire Health Board area[1737].
58. Mr Lynch saw the nature of his responsibility as fulfilling the Health Board's statutory responsibilities in visiting all registered nursing homes in the Health Board's area at least twice per year[1738].
59. He was responsible for the inspection teams but, occasionally, formed part of them[1739].
60. Mr Lynch's assessment of the statutory responsibilities of the Health Board under regulation 13 of the 1990 Regulations was misconceived.
61. Mr Lynch was referred to the terms of regulation 13(1) of the 1990 Regulations. He was asked to explain his understanding of what regulation 13(1) required of the Health Board[1740].
62. Mr Lynch's response falls to be recited in full:
"That having examined the documentation, being assured that the training had been recorded, whether it be lectures, fire drills, evacuation, tests of system, had been conducted then we would take that as an honest record, and there was a letter of comfort from the fire brigade who had conducted a visit, that they would have looked more thoroughly and more technically...at the fire processes, fire equipment, escape routes, fire escape doors, alarm systems etc. They would have brought their expertise to that inspection, giving them the comfort in issuing this letter of comfort or certificate. That was my understanding of what this letter of comfort conveyed to myself or my colleagues"[1741].
62 In addressing the Health Board's responsibilities under regulation 13(3) Mr Lynch said that that was the kind of issue he would have expected to be covered by the letter of comfort, hence why he would ask if the Home had a letter of comfort from the Fire Brigade. "That was the field of expertise that a fire officer would bring to an inspection conducted by themselves, looking at those points"[1742].
63 Mr Lynch described the inspection of nursing homes by the Health Board inspectors under regulation 13 of the 1990 Regulations as a "layman's qualitative assessment". It wasn't technical[1743]. The role of the inspector, according to Mr Lynch, was to check that the original standards of fire safety, accepted by the Fire Brigade and other agencies at the time of first registration were being maintained[1744].
64 Thus, in relation to the letter of comfort, production 213, page 4, Mr Lynch expected to see an annual letter covering the issues contained in the original letter (including the formulation of a suitable fire routine)[1745]. That was something the inspectors would be looking for[1746].
65 If so, they cannot have found one because no subsequent letters ever existed. Thomas McNeilly, the fire safety officer at Bellshill Fire Station, issued a letter of comfort to the Health Board at the time when Rosepark was to be registered[1747]. He was not asked by the Health Board to visit Rosepark again[1748].
66 The primary focus, according to Mr Lynch, was on the delivery of good quality nursing care to the residents, the staff that were there to deliver care and any issues with regard to shortcomings in the delivery of that care. Fire safety was not at the top of the list simply because Mr Lynch's view, then and now, was that another authority looked after those particular services[1749].
67 Mr Lynch did not consider that the role of the Health Board extended beyond the general. "My view was, and I think my colleagues' view was, that a considerable responsibility fell to the registered person and the fire authority for major issues relating to the fire procedures"[1750].
68 Mr Lynch felt that the detailed knowledge of fire safety and fire procedures rested with people who were more expert than him, and they would be people in the Fire Brigade. Mr Lynch did not look on himself or the other inspectors as persons with any particular expertise in fire procedures, fire fighting, and fire evacuation[1751].
69 The Health Board's approach appears to have been one which was concerned with examining for the presence of documents rather than considering the sufficiency and suitability of their contents[1752].
70 The Health Board inspectors would look for a policy or procedure which spelt out what staff should do if the fire alarm sounded[1753]. If recorded in fire notices the inspectors would not look specifically beyond the terms of the notice to establish whether the procedure prescribed would be carried out in practice[1754].
71 Mr Lynch's understanding of the role of the Fire Brigade was that "they had considerable responsibility throughout the life of that nursing home operating as a nursing home". The Health Board sought to be assured that during the calendar year someone from the Fire Brigade had visited, conducted an investigation of a kind, and provided the registered person with a letter or certificate of comfort[1755]. He did not, however, know what the statutory basis for such visits was[1756].
72 This misunderstanding of the Fire Brigade's involvement in nursing homes fed into the style for the self audit document which nursing homes were required to submit after 1997, and which Mr Lynch was involved in preparing[1757]. The reference in the self audit form was not a reference to a Fire Brigade familiarisation visit[1758].
Mairi Macleod
73 Mairi Macleod was a headquarters administrator with the Health Board between 1992 and 1995 and was a member of the nursing home inspection team[1759].
74 Mrs Macleod was asked the question: "When you were a Health Board Inspector, what did the Health Board consider to be the appropriate procedure to be followed by nursing home staff in the event of a fire alarm sounding[1760]?"
75 Mrs Macleod's response was that the Health Board inspection team would expect the nursing home to have an adequate written fire policy in place which would have been approved by the Fire Service, not the Health Board. Mrs Macleod stated that "we would just accept that that was what the procedure was"[1761].
76 If there was a fire procedure the assumption was that it would have been arrived at in consultation with the Fire Brigade. As an inspector Mrs Macleod would not have the expertise to be able to say whether a fire procedure was adequate or not[1762].
77 In response to the question what her understanding of the role of the Fire Brigade was in relation to the precautions to be taken and arrangements to be made by nursing homes in respect of fire, Mrs Macleod stated that the inspectors would look to see if the Fire Service had recently visited the Home; they would check to see if fire drills had been held, and they would check that the fire extinguishers had themselves been checked[1763]. The inspectors would have expected that the Fire Brigade had given advice on matters relating to fire[1764].
78 Mrs Macleod envisaged that the Fire Brigade was going around and making regular inspections of premises[1765].
79 This misapprehension as to what the Fire Service were doing in relation to nursing homes may have been advised by Mrs Macleod's erroneous belief that nursing homes required a fire certificate[1766].
80 As regards notices concerning the procedure to be adopted in the event of a fire, or fire alarm sounding, Mrs MacLeod's recollection was that they would have been taken at face value[1767]
Yvonne Lawton
81 Between 1995 and 2000 Yvonne Lawton (formerly Crookston) was a Headquarters Administrator with the Health Board[1768].
82 Asked whether she would be concerned to understand what procedures existed within a nursing home in circumstances where a fire alarm sounded, Mrs Lawton replied that she would not have looked at the detail of the procedures[1769]. Mrs Lawton would have checked that there was a record of drills, but she would not have checked what was involved[1770]. She thought that would be the general approach of the inspectors[1771].
83 Mrs Lawton could not recall any discussion about an appropriate procedure to be followed in the event of a fire alarm sounding. However, she was not required to assess the procedures that were in place in nursing homes, and did not do so[1772]. Nor, as far as she was aware, did anyone else[1773]
84 As a member of the Health Board inspection team, Mrs Lawton would have expected the owners or operators of the Home to put in place appropriate procedures to deal with the situation if a fire alarm were to sound[1774]. Mrs Lawton did not see it as her role to examine these procedures. Nor, as far as she was aware, did the other inspectors on the team[1775].
85 The inspectors would be looking for documentation evidencing certain matters but they would not be looking behind what was contained in the records[1776]. Mrs Lawton thought that there would be fire procedures which would be individual to establishments. The inspectors would be looking to see that there was a procedure in place. They would not be looking at the suitability of that procedure[1777].
86 When asked whether the inspection teams had been rigorous in getting to the bottom of what the fire procedures and practices were Mrs Lawton said "The exact detail of the procedures and evacuation procedures, I would say I didn't know that"[1778].
87 Mrs Lawton was unsure whether she would have had any concerns if told at an inspection in Rosepark that the procedure on a fire alarm sounding was to gather at the fire alarm panel, investigate at the zone indicated, and only thereafter call the Fire Brigade. It was perhaps a matter that the home would need to determine having assessed the risks involved. Mrs Lawton did not have any specific training in fire procedures or fire risk assessment, and did not believe that she had the skills to look at fire procedures[1779]
88 Mrs Lawton did not, in any event, believe that the inspectors set specific fire safety standards[1780]
Margaret MacCallum
89 Between January 1999 and early 2002 Margaret MacCallum was the nursing member of the Health Board's inspection team. She served in that role until the point in time when the inspection functions of the Health Board were taken over by the Care Commission[1781].
90 In relation to fire safety the inspectors did not have the authority that the Fire Brigade could bring to the subject. So the inspectors looked at basic things, such as seeing that fire drills had been carried out, that staff had had induction training and fire lectures and that the fire extinguishers and the fire exits had been checked on a frequent basis[1782].
91 Miss MacCallum's expertise was in nursing not fire control[1783].
92 Miss MacCallum was not aware of the Health Board having any position on what would be the appropriate procedure for staff in a nursing home to follow in the event of a fire alarm sounding[1784].
93 Miss MacCallum was not aware of the existence of any guidance that would have assisted her in determining what fire procedures were appropriate or otherwise[1785].
94 If Miss MacCallum were to have gone into a nursing home as part of an inspection team and found a notice on a wall setting out the steps that should be taken in the event of a fire warning sounding, she did not see it as part of her function to assess the suitability and sufficiency of the procedure. The contents of the fire notices were not the subject of follow-up discussion[1786].
95 In answer to a question by the Court as to who she thought was responsible for considering the adequacy of arrangements such as the procedure following an alarm sounding Miss MacCallum thought it would be the Fire Brigade "in whatever way they contacted the homes"[1787].
96 What the inspectors were looking for were written records of procedures. What the procedures were, and - critically - whether they were sufficient and suitable in the circumstances of the nursing home, were matters to which the inspectors did not apply their minds[1788].
Angela Westrop
97 Angela Westrop was employed by the Health Board as a Headquarters administrator from November 2000. It was her first job in the care sector[1789]. Most of her work was with the nursing home inspection team[1790].
98 During an inspection Mrs Westrop would look for an evacuation procedure. She would discuss with the manager of the home how the procedure would be implemented. Mrs Westrop could not recall what the Health Board considered to be an appropriate procedure to be adopted when the fire alarm sounded. Fire notices on the wall would not be sufficient. She would look for a written procedure and would be surprised if there was none[1791].
99 While this evidence might imply a greater level of scrutiny than simply noting the existence of fire notices it is not obvious that Mrs Westrop anticipated doing more than establishing the existence of a written procedure (as opposed to analyse its content). Given that her "on the job" training involved Mr Lynch and Mrs MacCallum (whose evidence on this matter is set out above) pointing out to her what the inspectors really needed to concentrate on[1792], it would seem unlikely that Mrs Westrop would have analysed any written procedure in terms of its sufficiency and suitability
(ii) Sufficiency and Suitability of Fire Drills
100 There appears to have been a determination by the Health Board at one time that drills should be undertaken at least annually[1793]. Annual drills were stipulated in the Guidance Notes from June 1999 and that was reflected in the evidence of the inspectors[1794].
101 As regards the contents of drills, however, it is submitted that an approach similar to that pertaining to the sufficiency and suitability of the procedure after a fire alarm may be decerned in the evidence of the Health Board inspectors. Thus:
Edward Hatttie
102 Mr Hattie appeared to state that the inspectors would be content with the recording of fire drills in a register supplied to the nursing home by the company who installed the fire detection equipment[1795].
Mairi Macleod
103 The inspectors would expect nursing homes to comply with "what had been set down by the Fire Service in terms of fire drills, checking of extinguishers and the fire certificate in the building". It was the Fire Service who would decide whether the appropriate arrangements were in place. They were the experts on fire and the inspectors would not presume to comment on that[1796].
Thomas Lynch
104 Mr Lynch stated that the inspectors would not necessarily ask what was involved in fire drills. Normally the record would suffice[1797]. It follows that, in so far as the drill would, or might, have involved a procedure that did not involve an immediate call to the Fire Brigade, that detail would not necessarily have been revealed at inspection.
105 As long as there was a record of fire lectures and drills the Health Board would take the written record of those as evidence that they had been done and that the continuing obligation of the registered person to provide them had been satisfied[1798].
Yvonne Lawton
106 In checking for evidence of drills it was for the owners or operators to determine how they were put into practice. Mrs Lawton would not have checked the detail of the procedures involved, and she thought that that would have been the general approach of the inspectors[1799].
Margaret MacCallum
107 Miss MacCallum stated that the inspectors would look at fire drill records and records of fire lectures. They would not explore what the drills and lectures involved but took the records at face value[1800]
108 In answer to a question by the Court as to who she thought was responsible for considering the adequacy of arrangements such as the content of drills Miss MacCallum again thought it would be the Fire Brigade[1801].
Angela Westrop
109 The inspectors would look for records of fire drills. They would not necessarily look behind the records of drills to find out what had happened during the fire drills[1802].
(iii) Bedroom Doors
110 The precise position of the Health Board on whether bedroom doors should be kept closed at night was ambiguous. The positions of the witnesses were not consistent. Thus:
Edward Hattie
111 Mr Hattie drew a distinction between fire doors and other doors. Fire doors always had to be kept shut. As regards bedroom doors Mr Hattie said that "you really can't lay down the law and say "Shut all doors"[1803]
112 Mr Hattie had no recollection of any issue arising at Rosepark in relation to door closers being disconnected or removed[1804]
Mairi MacLeod
113 Mrs MacLeod's evidence was that, if the bedroom door was a fire door, the inspectors would expect it to be shut. Mrs MacLeod had no recollection of what the position was if the door was not a fire door[1805].
Thomas Lynch
114 Mr Lynch was asked what the Health Board considered to be the appropriate approach of nursing home staff to the question whether doors to bedrooms should be left open or closed at night. His response was to say that it was in his mind and, he thought, in the minds of all of the inspectors that the doors should be closed at all times[1806].
115 It was not apparent from Mr Lynch's evidence that the Health Board had any policy documents which could be consulted by inspectors when considering matters like the approach to be taken if door closers were found to be connected[1807].
Yvonne Lawton
116 Asked what she thought the approach of the Health Board was to whether bedroom doors should be kept open or closed at night Mrs Lawton thought that it was a matter for debate. There was a balance to be struck between the safety of the residents in terms of fire safety regulations as against requests from residents. She thought that the position of the Board would have been that fire safety was the important thing. Mrs Lawton had a general recollection of discussion occurring between the Health Board, Social Work Departments and nursing home owners on the subject, but she could not recall the outcome of those discussions[1808].
Margaret MacCallum
117 Asked what she thought the approach of the Health Board was to whether bedroom doors should be kept open or closed at night Miss MacCallum replied "We would have said they should have been shut".[1809] The purpose of doing so was for reasons of fire safety[1810].
118 Mrs MacCallum was aware of a discussion within the Health Board about the use of door closers. She recalled, in general terms, a debate within the nursing home community about their use. However, ultimately, her position was that the Health Board would insist on bedroom doors being kept closed at night against a request by relatives for it to be kept open[1811].
Angela Westrop
119 The position of Mrs Westrop on the matter of the Health Board's approach to bedroom doors was uncertain. She thought that the Health Board would feel that, at night, it was safer to keep bedroom doors closed. Mrs Westrop recalled that there was discussion about doors within the Health Board from time to time but she was unable to remember the exact details[1812].
Lance Blair
120 The Fire Safety Advisor to the Health Board was not aware of any particular policy of the Health Board as to the appropriateness of keeping bedroom doors open at night, although he would have been of the view that they should be closed[1813].
Summary on bedroom doors
If the Health Board had a policy on the matter of bedroom doors, it was not one that was universally known about, or recalled, by the inspectors who gave evidence.
Conclusions on approach of the Health Board to its statutory responsibilities
121 On the basis of the foregoing evidence of Health Board employees it is not apparent that the Health Board approached its statutory responsibilities under the 1990 Regulations in any clearly reasoned way.
122 The evidence supports the conclusion that the Health Board did not consider that it had a role in assessing the sufficiency and suitability of fire precautions in nursing homes. Rather, it considered that its role was limited to confirming the existence of documents vouching that a nursing home was complying with its statutory obligations.
123 Mr Hattie and Mr Lynch, in particular, placed emphasis on the regular and continued involvement of the Fire Service in the scrutiny of fire precautions in nursing homes. While the Fire Service may have had a role, at least after 1997, in enforcing fire precautions in the workplace, it is apparent that neither Mr Hattie nor Mr Lynch were aware of any statutory basis underpinning the assumptions they made about the involvement of the Fire Service.
5. Inspection Visits at Rosepark
124 On 11 February 1992 Thomas McNeilly received a telephone call from Dr MacDonald at the Health Board. Dr MacDonald indicated that he would require confirmation that the premises were satisfactory[1814].
125 Mr McNeilly undertook a final survey of the premises on 14 February 1992 and called Dr MacDonald with that confirmation.[1815] The goodwill letter was issued on 25th February 1992[1816]
16 February 1992[1817]
126 The initial registration inspection visit was conducted on 6 February 1992
127 It was attended by Mr Hattie and Dr MacDonald.
128 In reference to "Firemaster's Report/Certificate" there was the entry "Approved verbally letter to follow"; (p8)
129 Fire procedures were said to be on display in a number of places in the Home; (p8)
130 In the Inspection Team's recommendations registration was recommended subject to a restriction to 30 residents; (p16)
19 August 1992[1818]
131 The report of the 6 monthly visit was conducted on 19 August 1992 by Mr Hattie and, probably, Mairi MacLeod. The following points are of interest:
132 There was now a Firemaster's Report/Certificate corresponding with the Goodwill Letter[1819]; (p218)
133 The date of last inspection was noted as February 1992; (p218)
134 The Fire Procedure and Log are recorded as having been examined; (p218). The fire procedure would accord with the fire notices on the wall. The fire log would record fire lectures and drills. Production 27 was the kind of thing the inspectors would be looking for[1820].
135 There was a lecture noted for 11th February 1992[1821].
136 Under "Fire Drill" it was noted "not yet". Mrs MacLeod anticipated annual drills for each of the shifts. The inspectors would look for evidence that all staff had attended. They would look at the staff register and check it against those who had attended[1822].
137 The inspectors would look for maintenance records for the fire alarm. There is a reference in the report to "ALARM 14/5 92" (p218). This may have been the sounding of the alarm or (less likely) a drill[1823].
138 Fire precautions were not the main focus of an inspection. It was about adequate staffing levels and the care of residents[1824].
139 The recommendation was that registration should be continued (p226).
4th February 1993[1825]
140 The annual inspection of 4th February was conducted by Mr Hattie and Mrs MacLeod[1826]. The following points are of interest:
141 This was the first annual inspection of Rosepark[1827].
142 The reference Firemaster's Report/Certificate was a reference back to the letter of comfort[1828];
143 It was not yet a matter of concern that there was no other evidence of Fire Brigade involvement.
144 The inspectors would look for the fire register and flick through it[1829]
145 There was no record of a fire drill having occurred[1830]. No comment was made about the absence of a fire drill in the inspectors' letter of feedback dated 15th February 1993[1831]
146 A fire lecture was recorded for 14th January 1993. The inspection would have confirmed the occurrence of the lecture rather than its contents[1832]. The attendance record indicates that the lecture did not involve the entire workforce[1833].
147 As regards the fire procedure the inspection would have involved checking for the presence of fire notices (as opposed to their contents)[1834].
148 The two undated letters bearing to be from Alec Ross[1835] and Alex Ross[1836] Electrical, 24 Electrical Care" relating to electrical cover, concerning an enquiry of 20th January 1993, would have been sufficient evidence of electrical maintenance arrangements at Rosepark[1837].
29 July 1993[1838]
149 The 6 monthly inspection on 29 July 1993 was conducted by Mr Hattie, Mr Mallinson and, possibly, Mrs MacLeod[1839].
150 The reference Firemaster's Report/Certificate was probably again a reference back to the letter of comfort [1840];
151 For the date of last fire drill there was recorded "None". The inspectors, by this time, would have expected to have seen a record with evidence of a drill[1841].
152 The fire lecture of 14th January 1993 was again recorded. The inspectors would have looked at the log again[1842].
153 The letters from Alec Ross or Alex Ross would again have been the kind of documents sought by the inspectors in relation to maintenance[1843].
154 In the recommendations section of the report there was no reference to any concern about the absence of fire drills[1844]. Nor was there any such reference in the feedback letter of 17th August 1993[1845]
9th February 1994[1846]
155 The annual inspection of 9th February 1994 bears to have been conducted by Mr Hattie and Mrs MacLeod[1847]
156 The reference Firemaster's Report/Certificate was probably again a reference back to the letter of comfort [1848];
157 The section for inserting the date of last fire drill was not completed, and there was, again, a reference to the fire lecture on 14th January 1993[1849].
158 In evidence Mrs MacLeod agreed that the Fire Register[1850] did not appear to show a record of any fire drill up to February 1994[1851]
159 Under General Facilities there was no change in respect of maintenance of services. The electrical letters referred to above would have been sufficient for the inspectors' purposes[1852].
160 The summary and recommendations section of the report made no reference to any concerns, nor did the feedback letter of 11th March 1994. If there had been a concern about fire drills during the inspection it would have been raised in the letter[1853].
9th August 1994[1854]
161 The 6 monthly inspection again bears to have been conducted by Mr Hattie and Mrs MacLeod[1855].
162 The format of the report had slightly changed but still contained a record of administration and records. The reference to the Firemaster's Report/Certificate and date of last inspection again related to the goodwill letter from the Fire Brigade[1856].
163 Although the inspection occurred in excess of two years after the date of the goodwill letter Mrs MacLeod would have expected that the Fire Brigade was going out and checking things from a fire perspective, and in particular monitoring arrangements around the nursing home[1857]. That knowledge affected the way fire precautions were looked at. Mrs MacLeod's evidence was that since the inspectors did not have the expertise someone else would be examining fire precautions[1858].
164 The date given in the inspection report for the last fire drill coincided with the date of the lecture on 14th January 1993. On the face of the record that covered very few of the staff[1859]. There appeared to be no record of a fire drill on 14th January 1993[1860].
165 The inspectors would look for evidence of maintenance of services. Mr Ross's letters would again be sufficient in that regard[1861]
166 The summary and recommendations section of the report and the feedback letter dated 29th August 1994 expressed no concerns about fire drills not having been undertaken[1862].
16th February 1995
167 The signatories to the report of the inspection on 16th February 1995 were Mr Hattie and Mrs MacLeod[1863].
168 The reference Firemaster's Report/Certificate was probably again a reference back to the letter of comfort. [1864]
169 The checking of the fire procedure would have involved looking at the notices, which would have been taken at face value[1865].
170 According to Mrs MacLeod the reference to weekly fire drills should probably have been a reference to weekly fire alarm tests. If correct, the Fire Register did not appear to have recorded any drills to date. There had been lectures noted for 11th and 28th February 1992, 19th November 1992, 14th January 1993 and there was subsequently a lecture recorded for 28th July 1995 (none of which appeared to cover the full complement of staff)[1866].
171 The document dated 25th January 1995 from Alex Ross Electrical would be the sort of document the inspectors would look to see for evidence of maintenance arrangements in relation to electrical installations. Similarly the inspectors would look for evidence such as the document evidencing testing on page 12 of production 571[1867].
172 The feedback letter of 23rd March 1995 referred to no concerns about the frequency of fire drills[1868].
14th August 1995[1869]
173 The signatories of the inspection report were Mr Hattie and Yvonne Lawton (then Crookston).
174 The date of last inspection by the Fire Service is marked "N/A".
175 Mrs Lawton would have accepted the letter from Alex Ross (production 215, page 60) as evidence of electrical cover[1870].
176 A fire lecture was noted for 28 July 1995. The number of attendees did not look like the full workforce[1871].
177 A fire drill was noted as having occurred on 8th August 1995. There was no equivalent entry in the Fire Register. There was what looked like an entry for a fire alarm test on that date[1872].
178 The report contained no comments in the section on bedrooms relative to concerns about the condition of bedroom doors. In particular no issue concerning door closers was recorded[1873].
179 The feedback letter dated 28 August 1995 expressed no concerns about fire precautions at Rosepark. If any issues of concern had been identified then they would have been mentioned in the letter[1874].
12th February 1996[1875]
180 The inspectors who signed the report were Mrs Lawton and Mr Johnstone.
181 Fire drills were noted as "weekly". Under reference to production 27 Mrs Lawton thought that the weekly entries looked more like fire alarm tests. Indeed Mrs Lawton didn't think it seemed correct that weekly drills were being carried out[1876].
182 The report noted, under General Facilities, "Alex Ross Electrical 24 hr cover for all electrical installations and portable appliances"[1877].
183 There were no concerns about fire procedures, fire notices, fire practices or anything else in the feedback letter dated 28th February 1996[1878].
29th August 1996[1879]
184 The format of the report had undergone certain changes. The inspectors were Mrs Lawton and Mr Johnstone[1880].
185 Under maintenance records (p94) there is recorded "Alex Ross inspected 25/1/96[1881].
186 Weekly fire drills were noted (p94). Mrs Lawton thought that there had been confusion between fire drills and fire alarm tests[1882].
187 Under accommodation (p95) the report disclosed no issue of concern about bedroom doors[1883].
188 Under training (p96) the report noted that there was an ongoing programme of in-service training which was linked to the appraisal system. Training records were held individually for all staff[1884].
189 Under "Policies and Procedures" the inspection report recorded that "the Home had a manual covering most aspects of the Home's operation but should review this to ensure that it covers all aspects of the Home's operation including policies on patient care". There was no particularisation of fire issues in relation to that statement. However, the report recommended a full review of existing policies and procedures to that end[1885].
4th February 1997[1886]
190 The inspectors who signed the report were Mrs Lawton and Mr Johnstone[1887].
191 The date of registration was erroneously stated to be February 1988.
192 There was no comment on the section for maintenance records (p83).
193 Weekly fire drills were again recorded, probably erroneously[1888].
194 Under bedroom accommodation (p84) there was no reference to any issue concerning door closers[1889].
195 Under training there was noted to be an induction programme and evidence of on-going staff training. The inspectors looked for evidence that there had been an orientation programme, that staff were made familiar with the establishment on arrival, that they were trained in fire procedures and made aware of those procedures, and that they kept up to date with clinical practice. In relation to fire procedures the inspectors would have looked at the induction programme for a sample of the staff and noted that there were fire procedures mentioned. The inspectors may also have spoken to new members of staff. After induction Mrs Lawton felt that the inspectors' focus would be on clinical practice. Ultimately it was for the Home to make sure that it had a suitable fire procedure in place[1890].
196 The feedback letter dated 13th February 1997 did not raise any fire safety concerns[1891].
4th September 1997[1892]
197 The format again changed for the succeeding reports.
198 Mrs Lawton and Mr Johnstone again signed the report as inspectors[1893].
199 Maintenance records were recorded as satisfactory. The kinds of records checked related to hoists, fire extinguishers, and nursing equipment[1894].
200 The document bearing to be a receipted invoice from Alex Ross Electrical on page 3 of production 571 would have satisfied Mrs Lawton as to the existence of maintenance cover for the electrical installations and appliances. She would not have pursued the matter further with the contractor[1895].
201 Since this was an interim inspection there may not have been an examination of the fire register[1896].
202 The home was recorded as having a suitable induction programme in place and there was evidence of ongoing in-service training. That statement was probably derived from a combination of checking records and speaking to staff[1897]
203 Under "Bedrooms" there was no record of an issue having been raised about door closers[1898].
5th February 1998
204 In advance of the annual inspection in 1998 Rosepark was required to complete a self audit[1899].
205 In the self audit the answer "May Informal" was inserted against the date of last inspection in a box dealing with a satisfactory Firemaster's Report or letter of goodwill. Mrs Lawton was uncertain what that meant. There had been ticked the statement that the home had procedures in place which reduce the risk of fire and diminish its effect if it occurs. There was confirmation that the home had a fire procedure and kept a fire log. The reference to "weekly tests" at entry 23 Mrs Lawton interpreted to be a reference to fire alarm tests. The inspectors would have taken the self audit material at face value but combined it with a check of some of the areas outlined in the audit document[1900].
206 The inspectors signing the report were Mrs Lawton and Mr Johnston. The person in charge was named as McCausland (although generally Mr and Mrs Balmer were present at the inspections). The maintenance records were found to be satisfactory. The Home had an appropriate induction programme in place and evidence was found of ongoing in-service training. Under bedrooms no issue was noted in respect of door closers. The only recommendation was that staff should provide a form of statutory declaration in connection with rehabilitation of offenders[1901].
207 The procedure by the time of this inspection was that the report was sent in draft to the owners for comment[1902].
26th August 1998[1903]
208 The interim registration inspection was attended by Rosslyn Rafferty, Mr Mallinson and Mr Johnston[1904].
209 The maintenance records were deemed to be satisfactory. There was no comment on staff training. Under bedrooms there was no comment on any issue concerning door closers. Miss Rafferty recalled no issue of concern arising in respect of door closers which had either been disconnected or removed[1905]. Had any concern of that nature arisen it would have excited a comment in the bedrooms section of the report[1906].
210 There were no recommendations bearing upon the issue of fire precautions arising from this inspection.
9th February 1999
211 The annual registration inspection in February 1999 was preceded by a self audit dated 29th January 1999 which was prepared on behalf of Rosepark[1907].
212 The self audit would have been looked at by an inspector in advance of the annual inspection any omissions addressed during the inspection itself[1908].
213 Miss MacCallum's understood the reference in the self audit to "Firemaster's Report or letter of goodwill" to mean a letter from the Fire Brigade saying that, subsequent to it opening, they had visited the home. The "date of last inspection" in the same box she thought related to an inspection by the Fire Brigade. Miss MacCallum appeared to believe that the inspection was in the nature of a process of familiarisation[1909]. However, the date given in the audit for the inspection - 26th August 1998 - is not included in any of the section 1(1)(d) records of visits[1910]
214 Under reference to section 4 of the self audit, where the reference to a fire log and fire procedure was ticked, Miss MacCallum explained that either she or the administrator would have examined the record of fire drills[1911]. It would be surprising if the reference in the self audit to 31 July 1998, as the date of the last fire drill, was not vouched in the fire register (it wasn't[1912]). She would have expected such a matter to have been picked up on during the inspection[1913].
215 In relation to the self audit confirmation regarding the existence of procedures to reduce the risk of fire and diminish its effect if it occurred, Miss MacCallum explained that the inspectors would be looking to check that the premises were free from clutter, that storage was properly managed, and that the laundry was manned at all times. These were matters based on common sense. She probably thought at the time that the area around an electrical distribution box was not safe for storage[1914].
216 Electrical systems and installations were things that the inspectors would want to see covered by maintenance arrangements[1915].
217 Mr and Mrs Balmer were present at the annual inspection in February 1999. Sarah Meaney would have been in attendance as well[1916].
218 The other inspectors were Isobel Frize and Mr Mallinson (who dealt with the pharmaceutical side of things)[1917].
219 The documents relating to Alex Ross and comprising pages 6 and 60 of production 215, and page 3 of production 571, would probably have satisfied Mrs MacCallum that there were arrangements in place for the maintenance of the electrical system in the home[1918].
220 Mrs MacCallum would have looked for evidence of training in fire safety at this, and any other, inspection. She would look at records, and also look around the home at fire extinguishers and fire exits. She would examine the fire register[1919].
221 In the annual inspection report, under the heading "Bedrooms", the following was stated:
"Miss MacCallum noticed that the automatic door closers on the doors were not connected. There was some debate around this matter and the Team agreed to look further into the regulations around door closers"
222 The debate involved Mr and Mrs Balmer, and Miss MacCallum. According to Miss MacCallum the explanation for the position was that a resident was unable to access her room because of the difficulty getting through the door. Mrs MacCallum said that she explained to Mr Balmer that, while she appreciated the difficulty, the door closer was there for a purpose, fire safety, and needed to be reinstated. That was not merely her view but the view of the Health Board. Mrs MacCallum stated that she agreed to take the matter away and get back to the home. Meanwhile she anticipated that the door closer would be reinstated.[1920].
223 Miss MacCallum stated that she did take the matter up with the rest of the inspection team and Mr Lynch. She did not think that there was much more discussion back at the Health Board. The position was that the door closers needed to be in place and it went no further. Miss MacCallum's evidence was that she thought that she would have contacted Rosepark and informed them of the position, although she could not specifically recall doing so[1921].
224 Miss MacCallum thought that the Board's policy was that all bedroom doors should be closed. The debate at the inspection related to one door. Miss MacCallum could not say if there were other rooms in the same position. For reasons that Miss MacCallum was unable to explain, there was no exploration at the inspection of whether the other bedroom doors were in the same position. There was nothing in the "Recommendations and Action Points" section of the report indicating that any further action was required. The issue of the door closer was dealt with by Miss MacCallum separately[1922].
225 The terms of her evidence are not such that it would be safe to make a finding that Miss MacCallum contacted Rosepark to advise that door closers needed to be in place. A copy of the report was sent out on 20 April 1999, and a final copy was sent out on 27 May 1999. Both of these documents contained the passage quoted above without any change. No further written communication was received on the subject at Rosepark. Nor, for that matter, did the management at Rosepark raise the issue again with the Health Board[1923].
226 Lance Blair, the Health Board's fire safety officer, was not involved in any discussion about the issue of disconnected door closers[1924].
227 Miss MacCallum said that if she had seen evidence that door closers had been removed she would have raised the matter with the owners of Rosepark[1925].
17th August 1999[1926]
228 Mr Balmer and Miss Meaney were present at the interim registration inspection on 17th August 1999. Miss MacCallum and Mr Lynch were the inspectors[1927].
229 In the section of the report entitled "Bedrooms" (p73) it has been recorded "The bedrooms visited were of a satisfactory standard, with evidence of personalisation". There was no mention in the report of the debate at the last inspection about door closers, or indeed any mention of door closers having arisen as an issue[1928].
230 If disconnected door closers had been seen by the inspectors that would have been recorded in the report[1929]. The absence of any such record means that either there were no disconnected door closers or the inspectors did not see those that were. The latter explanation may seem surprising given the discussion in February 1999. However, there is evidence before the Inquiry that door closers were first removed and disconnected when Brigid Boyle was the Matron (ie. between July 1992 and 1997)[1930]. According to Mr and Mrs Balmer the issue of residents being able to move freely in and out of their rooms was raised with the Health Board inspectors. According to Mr Balmer the inspectors spoke to several residents and had taken the view that there was an entrapment issue. The result of the discussion, according to Mr Balmer, was a decision that closers could be removed in respect of those residents who wished to access their rooms freely[1931].
231 There is independent support for Mr and Mrs Balmer's evidence. Brigid Boyle spoke to having been told by Mr Balmer that Edward Hattie had said that it was safe to remove the door closers[1932].
232 In the circumstances it is likely that there were bedroom doors in Rosepark whose closers had either been removed or disconnected at the time of the interim registration inspection in August 1999.
233 According to Mrs MacCallum the inspectors would have checked for evidence of fire drills at the interim inspection[1933].
9th March 2000
234 The annual registration inspection was preceded by a self audit prepared by Rosepark and dated 16th February 2000[1934].
235 In section 3 of the self audit, the entry for the date of last inspection was understood by Yvonne Lawton (who attended the inspection with Mr Lynch) to mean that there was either a report or letter of goodwill from the Fire Brigade dated 26th August 1999. There is no equivalent date in the table of section 1(1)(d) visits in production 182, page 3[1935]. Mrs Lawton could not recall what steps were taken, if any to verify the date of inspection. To what the date of 26th August 1999 relates is unclear.
236 The date of the last fire drill in the self audit was given as 23rd July 1999. The inspectors may have simply accepted that it occurred[1936]. The self audit also referred to a lecture for all staff in November 1999. The entry in the Fire Register for 23 November 1999 was consistent with what was stated in the self audit[1937].
237 So far concerned procedures which reduced the risk of fire and diminished its effect when it occurred, the inspectors would probably check in the policy and procedure manual for evidence of the existence of a policy or procedure[1938].
238 The inspection report recorded as satisfactory the home's maintenance records. Mrs Lawton was shown production 583, page 3, bearing to be a response to an enquiry about electrical maintenance and cover at Rosepark and Croftbank from Alex Ross Electrical. The document contained an offer to provide cover for 3 years commencing on 1st February 2000, and stated that it covered "Annual inspection of all electrical installations, earth bonding and all portable appliances and plug top testing, inspected as per electrical schedule." Mrs Lawton, if presented with this document, would have been satisfied with the information contained in it[1939].
239 The annual inspection recorded that the bedroom accommodation was of a satisfactory standard. If there had been any problem about the door closers it would have been noted in the report. No such problem was noted[1940].
240 Mrs Lawton stated that the inspectors would have consulted at least the previous inspection report, and probably the one before that, before they attended the annual inspection. Mrs Lawton believed that, at the inspection in March 2000, she would reconsider the information about door closers narrated in the February 1999 inspection report. In the "Recommendations and Action Points" section of the report, however, there is no mention of door closers.
241 The inference to be drawn from these circumstances is that any evidence of door closers having been removed or disconnected was not seen during the inspection on 9th March 2000.
9th August 2000[1941]
242 The interim registration inspection report was signed by Mrs Lawton and Miss MacCallum.
243 The last record of a fire lecture having occurred for members of staff prior to August 2000 was dated 28th July 1995. The list of attendees clearly showed that not all of the staff were present. The same could be said for the records of earlier lectures in the fire register[1942]. Miss MacCallum thought that the inspectors would expect to see records of annual fire lectures[1943].
244 The fire register had no entries for fire drills prior to August 2000[1944]. The fire register was used at Rosepark in preference to the Strathclyde Fire Brigade Fire Precautions Log, production 221. According to Sarah Meaney the Health Board had advised that, although it would be preferable for the Fire Brigade document to be used, the home could still use the fire register (production 27)[1945]
245 In the report itself, under staff recruitment and training (p37), the report stated that there were appropriate policies and procedures in place and that there was evidence of staff receiving ongoing in service education. Mrs Lawton explained that this would have been verified by an examination of a sample of records and speaking to staff[1946]. No issue was raised by the interim inspection concerning door closers[1947].
246 The section on recommendations and action points (p40) addressed an issue about keeping passageways to fire exits clear. No issue was raised bearing upon staff training or door closers[1948] .
7th February 2001[1949]
247 A self audit was prepared in anticipation of the annual registration inspection on 7th February 2001[1950].
248 The date of last inspection in section 3 of the self audit attracted a date of 28th December 2000[1951]. There was a visit to Rosepark on that date by Mr Edward Kelly of Strathclyde Fire and Rescue Service. The date on the self audit would probably been sufficient for the inspectors' purposes; they would not normally have asked what type of inspection had taken place[1952].
249 At this stage the understanding of both the Health Board and Miss MacCallum was that the Fire Brigade formally inspected the premises annually. However, Miss MacCallum was uncertain whether the inspections involved an examination of evacuation and fire alarm procedures[1953].
250 In section 4 the self audit was silent on the date of the last fire drill. That was something that the inspectors should have picked up on[1954].
251 In relation to section 23 of the self audit Miss MacCallum confirmed that the inspectors would be looking for records of procedures. The inspectors did not engage in an assessment as to the suitability or appropriateness of the arrangements made[1955].
252 As regards training, the inspectors would probably examine 4 or 5 sets of employment records relating to nursing and ancillary staff[1956]. It is, in this respect, instructive to recall from the evidence of Sarah Meaney that, in her experience, after a new member of staff arrived and received their induction there was no further fire awareness training provided to that new member of staff[1957].
253 The inspection was conducted by Margaret MacCallum and Angela Westrop[1958].
254 The report of the annual registration inspection recorded that the number of registered beds was now 43[1959].
255 The Fire Register records the occurrence of a fire drill on 29th February 2001, some 9 days after the date of the self audit. If Miss MacCallum had seen the entry in the Fire Register this would not have triggered an enquiry as to the contents of the drill or the personnel involved[1960]. Miss MacCallum accepted that, in order to form a judgement as to the adequacy of the drill, it would have been essential to find out what was involved[1961]
256 The bedroom accommodation was described as being of a high standard throughout. No issue was raised in the report concerning door closers, meaning either that there were no difficulties identified by the inspectors or that the rooms visited had doors whose closers had not been removed or disconnected[1962]
257 The recommendations and action points section of the report did not raise any matters of fire safety[1963].
August 2001
258 Miss MacCallum and Angela Westrop were again the appointed inspectors[1964].
259 There was only limited inspection of fire safety issues. Miss MacCallum recalled that there had been a decision, the basis for which she could not recall, that certain legislative requirements need only be checked annually. Whatever the basis of the decision, it included fire precautions[1965].
260 The result was that the inspection was limited to checking the fire extinguishers, and checking that the fire notices were still in place.
261 The report contained no recommendations or action points bearing upon the issue of fire safety[1966].
7th February 2002
262 The final Health Board annual registration inspection was conducted on 7th February 2002[1967]. It was preceded by the submission of a self audit dated 6 February 2002[1968].
263 In the self audit document the reference to a satisfactory Firemaster's report or letter of goodwill was ticked. The inspectors would have accepted that without follow up[1969].
264 The date of the last inspection bore an inscription that Miss MacCallum did not understand. However, there was a date, 30th November 2001, for the last fire drill which corresponded with an entry in the Fire Register. The record in the Fire Register did not tell a reader anything about how many attended the drill. Miss MacCallum thought (but could not say for sure) that they had asked during the inspection if all staff had attended, and that those who could not attend should have an opportunity to attend at some other date[1970].
265 The self audit referred to a fire safety video and questionnaire for all staff. The inspectors would not have looked at the video. They had insufficient time. By not doing so Miss MacCallum accepted that they probably could not consider the sufficiency and suitability of the fire drills, practices and procedures to be followed in the event of fire[1971]. However, Miss MacCallum was not trained to identify any deficiencies in the contents of the fire safety video[1972].
266 In the inspection report there were no concerns raised about staff training (save in relation to the manner in which references were obtained)[1973].
267 In relation to bedrooms no issue was raised concerning the disconnection or removal of door closers[1974].
268 The only recommendations in the report were concerned with the matter of employee references[1975].
269 In as much as the inspection report raised no concerns about staff training, Miss MacCallum was asked to confirm certain entries in the Staff Training Register (production 240). The record of training attendance on page 5 included reference to fire prevention in relation to courses on 3rd and 7th January, and 1st February, 2002. The numbers in attendance did not appear to represent the whole of the staff. The inspectors would not, in any event, explore what was involved in the courses. The next record of a fire prevention course, in April 2001, was on page 12. The numbers in attendance did not represent the whole of the staff. Pages 22 and 23 recorded the occurrence of the staff training in November 1999 which was replicated in the Fire Register[1976].
270 In view of the contents of the Fire Register and the Staff Training Register the inspectors could not be confident that sufficient fire training was being given to members of staff at Rosepark. A vigorous inspection regime might be expected to avoid the situation in which the 4 members of staff on duty on the night of the fire had not done a night shift fire drill[1977]. Where there were references in employment records to "Fire awareness training will be ongoing"[1978] the inspectors would not explore further[1979]. Finally, a sample of employment records (for Irene Richmond, Eleanor Ward and Ann Daly[1980]) all disclosed an absence of recorded fire safety training - far less annual training - after November 1999[1981].
271 Viewing the matter from 2002, Mrs MacCallum accepted that the Fire Register (production 27) essentially contained reference to fire lectures and fire alarm test rather than drills. Had the matter been more carefully examined that would have become apparent to the inspectors. Closer questioning in relation to the nature and content of the drills would have revealed that they did not extend to all members of staff, including night staff. An appropriate fire drill would be one that included such staff[1982].
Conclusions from the Inspection Process
272 The inspection process revealed only one instance in which the inspectors identified that a door closer (or closers) had been disconnected.
273 The evidence, however, is that door closers were removed or disconnected from a relatively early time in the history of Rosepark, and that remained the position after February 1999.
274 If the Health Board had a policy about the propriety of leaving bedroom doors open at night, it was not one that was known to the inspectors.
275 In spite of the Health Board's own guidance on the frequency of fire drills, the lack of recorded drills at Rosepark was never raised as an issue in the recommendations that followed every inspection report.
276 Lack of recorded fire drills ought to have become self-evident over time from inspection of the fire log, production 27.
277 Lack of ongoing fire training was never identified in any of the inspection reports. By inference it was not identified by the inspectors.
278 There is no evidence that the Health Board gave formal consideration to what constituted a suitable and sufficient procedure to be followed in the event of a fire alarm sounding and briefed its inspectors on the procedure to be enforced. The inspection regime was not geared towards the identification of discrepancies between published fire notices and the procedure actually followed at Rosepark.
279 The inspectors were not, in any event, trained to apply particular standards in inspecting matters of fire safety before they started inspecting nursing homes.
280 There was a widespread view amongst the inspectors that Rosepark was the subject of regular inspection by Strathclyde Fire and Rescue Service. That view was misconceived. It may explain why the Health Board's approach to inspection of fire safety matters between 1992 and 2002, particularly under reference to regulation 13 of the 1990 Regulations, was superficial. The approach of the Health Board was not advised by either the clear setting of standards of fire precautions to be expected of nursing home management, or appropriate training of Health Board inspectors in the standards so set. It was, therefore, an approach which was unlikely to secure that fire safety was being managed properly by the management at Rosepark
281 In the circumstances, and under reference to section 6(1)(d) of the 1976 Act, the Crown submit that there were defects in the system of working by the Health Board as regards the regulation of nursing homes. These are set out in chapter 45(5) of the Crown's submissions.
Response to Submissions of the Health Board
282 It is proposed to consider first of all section 1 of the submissions of the Health Board headed "A contribution in Section 6 of the 1976 Act".
283 The Crown, plainly, concurs in the view that it is important not to lose touch with the words of section 6. In so doing it is to be noticed that section 6(1)(d) of the 1976 Act contemplates a situation where the defects, if any, in any system of working contributed to either the deaths or any accident resulting from the deaths. Accordingly, it does not follow that a determination under section 6(1)(d) can only be made if the defects in any system of working contributed to the accident resulting in the deaths. If (and this may not be the intention of the submission) it is being proposed that the two parts of section 6(1)(d) fall to be conflated to that effect, the proposition is rejected.
284 As far as the definition of "accident" is concerned the Crown is content to rely on the meaning given to that word by Sheriff Miller referred to in paragraph 5 of chapter 1 of these submissions.
285 Section 2 of the Health Board submissions, headed "The statutory scheme 1992 to 2002", focuses on the contention that the repeal of the 1938 Act and 1990 Regulations was a novus actus interveniens. The submission is understood to be that even if there were defects in the Health Board's system of working, as regards the regulation of fire safety at nursing homes, the introduction of a new regulator with new statutory responsibilities meant that those defects could not be causative of the deaths.
286 Assuming that to be the submission, it is misconceived. Section 6(1)(d) is concerned with defects in any system of working which have contributed positively to the deaths (or the accident resulting in the deaths)[1983]. In making a determination under section 6(1)(d) the Sheriff requires to be satisfied that the defects in any system of working did in fact contribute to the deaths[1984]. The standard of proof and rules of evidence are that applicable in civil business[1985]. For the defects to have contributed to the deaths, the contribution must have been one which was material[1986]in the sense of being more than de minimis[1987]. Approached on that basis it is nothing to the point that the Care Commission was established with effect from 1st April 2002 under a different legislative framework. The suggestion that the Care Commission assumed the obligations of the Health Board[1988] is not understood, and, in any event, not warranted by the terms of the 2001 Act and 2002 Regulations.
In respect of section 3 of the Health Board's submissions, it is important to stress that the proposed determination in chapter 45(5) of the Crown's submissions is concerned with compliance by the Health Board with its obligations under regulation 13 of the 1990 Regulations. Regulation 13 required the Health Board to determine the sufficiency and suitability of certain fire safety standards, as set out in the regulation. Had that been done it is submitted that it is likely that there would have been determined by the Health Board, and enforced through properly trained inspectors, standards of fire safety which built in specific precautions. The precautions referred are (i) that an immediate call to the Fire Brigade should be made whenever the fire alarm sounds; (ii) that bedroom doors should be kept shut at night, or appropriate arrangements made to secure that bedroom doors were immediately closed in the event of a fire alarm sounding in the Home, and (iii) that fire drills, and refresher training, covering the procedure to be followed in the event of a fire alarm sounding, should be attended by all staff, including night staff[1989]. The precautions relate to matters which fell squarely within the terms of regulation 13.
287 It is submitted on behalf of the Health Board that "any claimed defect in continuity, completeness and content of regulation 8 records are not to be borrowed in criticising Lanarkshire Health Board's management understanding of what it was required to ensure was sufficient and suitable reasonably in the circumstances of the registered premises." This contention, it is submitted, is untenable. Regulation 8 was concerned with records. Regulation 13 was concerned with standards of fire safety, the sufficiency and suitability of which fell to be determined by the Health Board, and which standards of fire safety required to be maintained for as long as registration remained in force[1990]. If the Health Board inspectors were checking whether those standards were being maintained, the absence of records required under regulation 8 would be of obvious relevance.
288 Regulation 13(4)(f) of the 1990 Regulations required the person registered to consult with the fire authority on fire precautions. That requirement did not detract from the regulatory responsibilities of the Health Board.under regulation 13. In any event there is no evidence before the Inquiry to indicate that the inspectors investigated what level of consultation existed between the management of Rosepark and the Fire Brigade (aside of what was contained in the records examined earlier in these submissions). Rather, there was misunderstanding as to the involvement of the Fire Brigade at Rosepark[1991].
289 Under reference to the Health Board's submissions under the heading "Suitable and sufficient standard was to be reasonably considered"[1992] it is observed that the goodwill letter[1993] stated that "[P]rior to occupation of the premises a suitable fire routine should be formulated and effective steps taken to ensure that both staff and residents are familiar with the procedure to be followed in the event of fire". That being the position there is no basis for the assertion[1994] that the Health Board were entitled reasonably to consider that the letter of comfort had been issued by the fire authority because the fire authority was satisfied "in respect of the fire safety facilities, precautions and arrangements".
290 On matters of evidence the Crown relies on the submissions made above and the evidence referred to, and relied on in support of, the proposed determination in chapter 45(5).
CHAPTER 27 (Formerly 22C): THE CARE COMMISSION AND ITS INTERACTION WITH ROSEPARK 2002-2004
The purpose of this chapter is to examine (i) the origins of the legislation responsible for constituting, and determining the functions of, the Care Commission, (ii) the terms of the legislation and the National Care Standards (under reference to which Care Homes such as Rosepark were inspected), (iii) practical issues arising from the establishment of the Care Commission, (iv) the Care Commission's inspection methodology, and (v) the Care Commission's inspections of Rosepark.
In view of the evidence narrated in this chapter the Crown proposes, under reference to section 6(1)(e) of the 1976 Act, that the following circumstances were relevant to the deaths at Rosepark.
1. The proposals which gave rise to the Regulation of Care (Scotland) Act 2001("the 2001 Act"), the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 ("the 2002 Regulations"), and the National Care Standards 2002, were not intended to effect any change in the level of scrutiny applied to the inspection of fire precautions in nursing homes.
2. The expectation of the sponsors of the new legislation was that the existing arrangements for inspection of nursing homes by Health Boards would continue under the auspices of the Care Commission.
3. The policy intentions behind the 2001 Act, 2002 Regulations and the National Care Standards 2002 reflected a desire, as reflected in the White Paper and subsequent Consultation Document, to move away from a prescriptive approach to inspection which called only for a home to be measured against its compliance with statutory requirements.
4. It is not appropriate for the Inquiry to make findings about the appropriateness of such matters of policy. However, it is a circumstance relevant to the fire at Rosepark that, intentionally or otherwise, the repeal of the Nursing Homes (Registration) (Scotland) Act 1938 ("the 1938 Act") and the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 1990 ("the 1990 Regulations"), and their replacement with the 2001 Act, 2002 Regulations, and the National Care Standards, resulted in a weaker regime of inspection.
5. Regulation 19 of the 2002 Regulations was the only regulation to address matters of fire safety. It was a regulation concerned with the keeping of records. Until it was amended with effect from 1st October 2006[1995], regulation 19 required a care provider to keep a record of the procedure which was to be followed in the event of a fire or other emergency, a record of all fire drills and alarm tests which have been conducted, and a record of any maintenance of equipment which is used in the provision of the care service[1996].
6. There was no provision in the 2002 Regulations directing the Care Commission to consider the sufficiency and suitability of the procedure to be followed in the event of a fire or other emergency or the sufficiency and suitability of the recorded fire drills.
7. At Rosepark in 2003 fire safety was not scrutinised in any depth by the inspectors. The inspectors did not see fire safety as a priority. Nor did the Care Commission. At the time of the annual inspection on 20th March 2003 the Care Commission's focus was on the experience for the user of services, and, at a practical level, the establishment of a national regime of inspection applying national standards.
8. The 2001 Act, 2002 Regulations and National Care Standards together lent themselves to a lower level of scrutiny of fire precautions than ought to have been the case under the Health Board inspection regime.
9. The way in which fire precautions were examined at Rosepark on 20th March 2003 was unlikely to uncover defects in fire policies and procedures.
10. The inspection on 20th March 2003 did not discover any discrepancy between the contents of published fire notices at Rosepark and the procedure adopted by the home on the sounding of the fire alarm.
11. The inspection on 20th March 2003 did not discover that members of staff at Rosepark, and in particular night staff, were not being given regular fire safety training, and participating in fire drills.
12. The inspection on 20th March 2003 did not discover that there was a practice at Rosepark of permitting bedroom doors to remain open overnight.
13. The inspection on 20th March 2003 did not discover any deficiency in the premises' risk assessment. The inspectors were not, in any event, qualified to assess the suitability or sufficiency of that assessment.
14. On the evidence there was no basis for the finding in the inspection report, under care standard 4, that service users and staff were aware of what to do in the event of a fire and that all relevant fire safety information and tests were recorded.
15. On the evidence there was no basis for the finding in the inspection report, under care standard 5, that Rosepark had appropriate policies and procedures regarding fire safety.
16. The level of scrutiny of fire safety issues at Rosepark on 20th March 2003 was a product of an inspection regime whose focus was on care rather than safety.
1. The Regulation of Care Project
1. Elizabeth Hunter is the Director of Equality, Social Inclusion and Sport within the Scottish Government.[1997]
2. Mrs Hunter gave detailed evidence about the Regulation of Care Project and the policy underlying the legislation and national care standards.
3. In the summer of 2000 Mrs Hunter, then Deputy Director for Community Care, headed a team in the Scottish Executive which was responsible for implementing the proposals in the White Paper ("Aiming for Excellence - Modernising Social Work Services in Scotland"[1998]) to set up the Scottish Commission for the Regulation of Care ("the Care Commission")[1999].
4. The team led by Mrs Hunter, known as the regulation of care team, was staffed by professional and policy civil servants, and also consultants and secondees from the Health Boards and local authorities which had hitherto been responsible for regulating care[2000].
5. The regulation of care team was responsible for preparing the primary and subordinate legislation, establishing the Care Commission and the Scottish Social Services Council, making appointments to the new bodies and securing a headquarters and area offices. The team was also responsible for preparing the National Care Standards against which care services would be inspected[2001].
6. The White Paper was published before devolution in March 1997[2002]. One of the drivers for change was that residential homes and nursing homes were regulated by different bodies. There was a perceived need to achieve consistency in the approach to care services and their regulation[2003]. In addition, local authorities ran but also regulated residential homes. There was perceived to be a conflict of interest.
7. The objective, in what was mainly a government sponsored initiative, was to establish an independent system that regulated all homes equally[2004], and also to put in place a system of care regulation designed to meet the interests (including dignity, choice and independence) of the users of services rather than the providers[2005].
8. Perceived deficiencies in the current system of care regulation were set out in chapter 5 of the White Paper. The point was made that residential care homes in the voluntary and private sectors were regulated by local authorities and nursing homes by the Health Boards. Since there were 32 local authorities and 15 health boards in Scotland standards inevitably varied. This, in turn, made for a problem of lack of integration because it was difficult for home owners to provide nursing home services and residential care home services from one establishment[2006].
9. Paragraph 5.6 of the White Paper contained the proposal to establish the Care Commission[2007]. It noted that the proposals in the White Paper built on the report of a working group on residential care home registration procedures which had a widely drawn membership. Paragraph 5.7 of the White Paper proposed that the Care Commission be responsible for the registration, inspection and enforcement of standards in nursing homes[2008].
10. Paragraph 5.9 of the White Paper proposed that the Care Commission would have its own team of inspectors and would decide how they should be deployed to achieve good geographical coverage. The inspectorate team would consist of people with skills and qualifications from social work and other relevant disciplines including health[2009].
11. Paragraph 5.10 of the White Paper proposed the establishment a National Care Standards Committee with the task of developing, through consultation, a series of national standards for the services to be regulated by the Care Commission[2010].
12. Paragraph 5.13 of the White Paper proposed that Health Boards would cease to have responsibility for the regulation of nursing homes with the creation of the Care Commission, but both would wish to liaise closely on matters of common interest. In fact, a number of Health Board inspectors came to be employed as inspectors by the Care Commission[2011].
13. The objective was for care services to meet, and be focused on, the needs of users of services, and for the system of regulation to reflect that objective[2012].
14. Fire safety was not mentioned in the White Paper. This was because, as regards fire safety, the existing arrangements were expected to be transferred to the new system. There was no understanding that there was any need for things to be done differently as far as fire safety was concerned. If there were any concerns about fire safety issues one would have expected such concerns to have been reflected in the White Paper[2013].
15. A Consultation Paper was prepared by the Scottish Executive[2014], and the proposals were put out to consultation in about December 1999[2015].
16. In relation to fire safety it was not the intention of government that the establishment of the Care Commission would result in any diminution in the power to regulate matters of fire safety. The understanding and expectation was that the existing system was being transferred to the Care Commission, and that other additional improvements were being made so that the system of regulation was more coherent and integrated[2016].
17. Paragraph 13 of the Consultation Paper included the statement:
"The legislation will avoid tight prescription of the functions of the Commission...and will be as enabling and flexible as possible...".
18. The underlying intention was to encourage the Care Commission to think more widely about what it was doing and to focus on the interests of the user, rather than simply implement rules set out for it. The Care Commission was being established, not because there were any particular complaints about the existing regulatory regime for nursing homes, but because of a change in emphasis in how regulation should be undertaken[2017].
19. In particular, there were no concerns about the legislation underpinning the role of Health Boards in the regulation of fire safety in nursing homes[2018]
20. Mrs Hunter's understanding at this time was that the Fire Services were responsible for fire safety, nursing homes were assessed by them , fire certificates were exhibited, and the Health Board inspectors simply satisfied themselves that this was happening[2019]
21. Paragraph 47 of the Consultation Paper referred to the proposal to institute a procedure for completion of a self-evaluation form, to be completed (at least in terms of the proposal) every 6 months. The contents of the form would initially be set by the Scottish Executive based on work of the national care standards committee. This was intended to encourage care providers to review and assess their services against the National Care Standards; self-evaluation was an important part of the new regulatory process[2020].
22. Draft National Care Standards were also put out to consultation. They were prepared, under the auspices of the National Care Standards Committee (which first met in the late summer of 1999[2021]), through different working groups for different types of service. The national care standards were to be taken into account under the new arrangements for regulating and inspecting care services. They set out the quality of care that would form the basis for the registration and inspection process[2022].
23. The national care standards were non-statutory, and were, to some extent, aspirational in the sense that they set out what providers should be aiming for[2023].
24. No one with a fire safety background sat on the National Care Standards Committee[2024] or the older persons' working group[2025]. The reason for this was that it was not expected that the National Care Standards would deal with fire safety. Mrs Hunter's understanding was that the existing system for dealing with fire safety would run on and would not need to be covered by the national care standards. There were, however, references to fire safety in the draft National Care Standards, and the draft standards had been the subject of consultation with a wide range of people[2026].
25. As far as Mrs Hunter could recall fire safety did not come up as an issue in the consultation process. That accorded with the recollection of Ronald Hill, who also sat on the National Care Standards Committee[2027]. Ronald Hill, Director of Inspection Services at the Care Commission, was then Head of the Edinburgh and Lothians Inspection Service[2028]. The National Care Standards Committee consulted with the Health Boards. As far as Mrs Hunter could recall there was no discussion about fire safety regulation. Nor would she have expected such a discussion because it was not the focus of the committee. It was not anticipated that the National Care Standards would set out standards for fire safety issues[2029].
26. Mrs Hunter's understanding, perhaps surprisingly, was that the Health Boards were not responsible, as regulators, for fire safety. As a result, it was anticipated that the Care Commission would simply be checking that certain things - such as that residents knew what to do if there was a fire, or if there were fire drills and that they were recorded - were happening. It was not being given statutory responsibility for the fire safety of care homes[2030].
27. Mrs Hunter's understanding, which appears to have extended more broadly than the National Care Standards Committee, was that before a care home opened the Fire Service would check on its suitability to be opened to the public. Sometimes there were non-statutory inspections thereafter, perhaps in tandem with the Health Board's own inspections. The advice Mrs Hunter was receiving was that steps would be taken to ensure that the Fire Brigade remained comfortable with the arrangements that had been approved at first registration[2031].
28. No specific advice was sought at the consultation stage about the legislative functions of the Fire Services and Health Boards in relation to fire safety[2032].
29. There was a Bill team, responsible to Mrs Hunter, which prepared, and took through the Regulation of Care (Scotland) Bill[2033]
30. In the final analysis it appears to have been the understanding of the regulation of care team that in practice the health board inspectors worked closely with the Fire Services in considering any fire safety issues. When it came to drafting the legislation, that understanding had the consequence that it was not felt necessary to be as specific about fire safety issues in the 2002 regulations as was the wording in, particularly, regulation 13 of the Nursing Homes Registration (Scotland) Regulations 1990[2034] even if, on the face of it, regulation 13 of the 1990 Regulations appeared to require rather more than the process of checking that Miss Hunter contemplated for the Care Commission inspectors[2035].
31. Mrs Hunter thought that her team's assumption was that, while the Fire Services did not re-inspect care homes annually, they were a source of advice. This was, of course, correct[2036]If the Fire Services had any concerns they would be working with care home owners to resolve them, there might in some areas be some re-inspection work, and fire prevention officers would look at particularly vulnerable buildings. But the regulation of care team was not looking at fire legislation. Fire safety simply was not being focused on by the team[2037]. It was attempting to "reflect the previous arrangements in the new arrangements". They were not explicitly or deliberately changing those arrangements in any way[2038].
32. The 2002 Regulations were put out to consultation and no concerns were raised on any matters of fire safety[2039].
33. Ronald Hill sat on the advisory group which commented on the draft Regulations[2040]. The advisory group included people from the Health Boards[2041]. Mr Hill echoed the view that there was no intention to innovate on the existing arrangements for the regulation of fire safety[2042].
34. There would appear to be no material disagreement between those parties interested in this part of the evidence regarding the historical background to the legislation summarised in the next section of this chapter.
2. Synopsis of Legislation
1. The outcome of these various deliberations was the Regulation of Care (Scotland) Act 2001 ("the 2001 Act")[2043].
2. The 2001 Act received Royal Assent on 5th July 2001.
3. Section 1 made provision for the constitution of the Care Commission.
4. Schedule 1 laid down the general powers of the Care Commission. These included the power to co-operate with other persons in matters relevant to the exercise of its functions[2044].
5. In section 2 of the 2001 Act a "care service" was defined as including a "care home service". In turn a "care home service" was defined as "a service which provides accommodation, together with nursing, personal care or personal support, for persons by reason of their vulnerability or need".
6. Rosepark was just such a care home service.
7. Section 5 was concerned with National Care Standards. Having consulted as appropriate the Scottish Ministers were directed to publish national care standards applicable to care services.
8. Section 5(3) was an important provision. It directed that the national care standards shall be taken into account by the [Care] Commission in making any decision under this Part [1].
9. Section 7(1) provided that a person who sought to provide a care service was to make an application to the Commission for registration of the service.
10. Section 9 conferred on the Commission the power to grant or refuse such an application.
11. Section 10 made provision for the giving by the Commission of an improvement notice. Section 12 permitted the Commission, at any time after expiry of the period specified in an improvement notice, to propose to cancel the registration of a care service.
12. Section 13 conferred on the Commission the power to vary or remove an existing condition on registration, or impose an additional condition.
13. Section 18 prescribed a procedure for urgent cancellation of registration by summary application to the Sheriff, with intimation of any such application to the relevant Health Board.
14. Section 25 was concerned with inspections. Thus an authorised person was permitted to inspect any care service. In relation to a care home service section 25(3) required that the power of inspection be exercised (a) at least twice in the initial year of registration, and (ii) at lease twice per annum thereafter, at least one of the inspections to be unannounced.
15. Section 25(6) was concerned with the process of inspection. It permitted inspectors appointed by the Care Commission to make any examination into, and conduct any interview as regards the state of management of the service, and the treatment of persons cared for by the service. It also permitted appointed inspectors to interview management, staff and persons cared for by the care service. Further powers relating to the process of inspection were contained in succeeding provisions of section 25.
16. Sections 28 and 29 were concerned with the making of Regulations relating to the Commission and to care services. Section 29, in particular, provided that regulations could make provision as to the persons who were fit to provide, or act as manager in relation to, a care service. Regulations could also make provision for the making of returns to the Commission.
17. Section 30 empowered the Scottish Ministers to make a scheme for the transfer of Health Board employees (and others) who were engaged in ongoing work.
18. Section 59 contained a statement of General Principles under which the Scottish Ministers and the Commission were exercise their functions, namely (i) the enhancement of the safety and welfare of all persons who used care services, (ii) the promotion of the independence of those persons, and (iii) the promotion, also, of diversity in the provision of care services.
19. In schedule 4 there was contained a schedule of repeals. The first Act of Parliament on the list was the Nursing Homes (Registration) (Scotland) Act 1938.
20. The power to create Regulations under section 29 was duly exercised. The product of that exercise was the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 ("the 2002 Regulations")[2045]. The 2002 Regulations came into force on 1st April 2002. The 2002 Regulations set out the requirements which had to be complied with by providers of care services under the 2001 Act.
21. In passing the Regulations the opportunity was taken to make provision for standards of fitness of providers of care services (regulation 6), the fitness of managers (regulation 7), the fitness of employees (regulation 9), the fitness of premises (regulation 10) and the provision of facilities (regulation 12).
22. The opportunity was also taken in regulation 19, under the heading "Records", to specify the statutory responsibilities of the provider of services relative to fire safety. Thus was the provider directed to keep a record of "the procedure to be followed in the event of a fire or other emergency; all fire drills and alarm tests which have been conducted, and any maintenance of equipment which is used in the provision of the service."
23. The National Care Standards in force at the time of the fire at Rosepark[2046]were statutory only in the sense that they were to be taken into account by the Care Commission in taking any decision under part 1 of the 2001 Act. Since that included the power to register, inspect, and serve improvement and condition notices, the practical effect of section 5 of the 2001 Act was to cause the national care standards to become the tool of the inspection process (as the discussion of the Care Commission methodology will explain).
24. So far as relevant for present purposes the National Care Standards provided as follows:
25. Standard 3: You have full information on your legal position about your occupancy rights in a care home. You are confident that the home is run in line with legal requirements for health and safety, fire safety, and food hygiene...4. You can ask for confirmation that the home meets with all the relevant legislation and guidance relating to fire, health and safety procedures...and risk management.
26. Standard 4: Your environment will enhance your quality of life and be a pleasant place to live...9. You receive information about what to do in the event of a fire or other emergency.
27. Standard 5: You experience good quality support and care. This is provided by management and staff whose professional training and expertise allows them to meet your needs. The service operates with all necessary legal requirements and best practice guidelines...1. You can be assured that the home has policies and procedures which cover all legal requirements, including...fire safety.
28. Standard 9: You take responsibility for your own actions, secure in the knowledge that the home has proper systems in place to protect your interests...3. You can discuss risks with staff.
29. The Crown concur in the observation made on behalf of the Care Commission (at paragraph 9 of its Submissions) that the terms of regulation 19 of the 2002 Regulations impose less stringent fire safety regulatory functions than were prescribed by regulation 13 of the Nursing Homes Registration (Scotland) Regulations 1990.
3. Practical Issues arising from the establishment of the Care Commission
1. Jacqueline Roberts was appointed Chief Executive of the Care Commission in October 2001[2047]
2. Although, prior to her appointment, Mrs Roberts had regular contact with the regulation of care team, she had no involvement in the creation of the 2002 Regulations[2048].
3. Mrs Roberts was appointed with a skeleton staff. In the period leading up to April 2002, there was no input from any fire specialist in relation to matters of fire safety[2049].
4. The main challenge facing the Chief Executive in preparing the Care Commission to assume its regulatory functions in April 2002 was to transfer members of staff from 44 different employers into one national body with all the human resource implications associated with that. There was no consistency of practice or approach across local authorities and Health Boards. Mrs Roberts stated that she told the relevant Minister that the new organization would not be "perfect on day one". It would be necessary to work hard to establish nationally consistent practice in the first two years[2050].
5. Mrs Roberts also spoke of difficulties in retention after the Care Commission was established on 1st April 2002 as a result of the Scottish Government making available a voluntary severance package for employees of previous regulators. She explained that between April and September the Care Commission lost about 25% of its experienced staff[2051].
6. Ronald Hill echoed the kinds of challenges described by Mrs Roberts. He spoke of the arrangements that were made to prepare for a new regime of inspection. Prior to April 2002 a group of officers, including Elizabeth Norton and himself, got together and examined existing practice in the registration and inspection services across the country. They were looking to see how the various disparate approaches, across 15 Health Boards and 32 local authorities, could be brought together in such a way as to create a single national approach. There was not a great deal of time to achieve this. There was no effective shadow period. Mr Hill and others were still employed by their previous employers while these discussions took place.[2052]
7. During the first year of the Care Commission's operation an educational programme and an organizational programme were developed so that - as Mr Hill put it - "we could begin to look at how the Care Commission would inspect". What they assist in that process were the 2002 Regulations and the National Care Standards[2053]. The process took time to put in place and was an ongoing programme over at least the first year of the Care Commission (2002/2003) and beyond[2054].
8. The only annual inspection to take place at Rosepark prior to the fire fell within that first year of the Care Commission's operation.
9. As it happens, between 2002 and 2004, there were no arrangements in place between the Care Commission and Fire Brigades regulating the relationship between them from a fire safety point of view. They had started a process of developing a memorandum of understanding covering respective roles and responsibilities, and how the two organisations could work together. Ms Norton conceived that this was an area which had not been left as clear as it might have been by the 2001 Act. The memorandum was a way of formalising contact[2055].
10. John Russell of the Community Fire Safety Department of Strathclyde Fire and Rescue Service, gave evidence which backed up the existence of contact between the Care Commission and the Fire Brigade between 2002 and the fire. He recalled attending a meeting held in Paisley at the instance of the Care Commission some 6-9 months after it was established. The meeting was attended by representatives of the Care Commission, fire safety officers of Strathclyde Fire and Rescue Service, and someone representing HM Fire Inspectorate. Mr Russell thought that the meeting had been chaired by Liz Norton[2056].
11. This was an initial meeting at which the fire officers sought to ensure that the Care Commission had some understanding of the considerable risk of fire within nursing homes. An explanation was being given about how the Care Commission would be going about discharging the duties previously discharged by the Health Boards. After the meeting the Care Commission representatives agreed to report back to Head Office in Dundee and to maintain a dialogue. That dialogue eventually resulted in the memorandum of understanding[2057].
4. The Inspection Methodology
1 Elizabeth Norton was Regional Manager for the Central West Region of the Care Commission and, latterly, Director of Adult Services Regulation[2058].
2 Miss Norton gave detailed evidence about the inspection methodology devised for the Care Commission.
3 From November 2001 Ms Norton, who was then employed by South Lanarkshire Council as Head of Registrations and Inspections, was appointed to lead the project team which was to develop an inspection model for the Care Commission[2059].
4 Ms Norton was involved in the generation of a pre-inspection return and a self-evaluation document for care homes[2060]. They were part of the method of inspection of care homes which was developed under reference to the National Care Standards which had been available for some months prior to the assumption by the Care Commission of its responsibilities on 1st April 2002. The methodology was also reflect the broad policy of the Regulation of Care (Scotland) Act 2001 ("the 2001 Act").
5 It was, according to Ms Norton, broad government policy that the Care Commission should take a proportionate approach to inspection. In relation to care homes this approach involved not just looking at such matters as the building, and the number of staff, but also the experience of the people living there. That was the focus of the National Care Standards[2061].
6 The approach being introduced was reflected in a passage about the development of the National Care Standards in paragraph 19 of the consultation paper, Draft National Care Standards[2062], which stated this:
"Drawing up Standards which move away from a more traditional reliance on monitoring process issues, records and the fabric of buildings has proved challenging"
Moving away from that traditional approach was what underpinned the 2001 Act, the 2002 Regulations, and the National Care Standards themselves[2063].
7 The traditional approach focused on physical standards and was prescriptive. It could result in an apparently well constructed and organised home which did not necessarily translate into a similar level of care. The new approach was to focus on the experiences of people[2064].
8 According to Ronald Hill, Director of Inspection Services at the Care Commission, the new approach also advised the nature and extent of the training of inspectors. They were trained social workers and nurses, not trained firefighters. Mr Hill would not expect the inspectors to have the kind of knowledge that would lead them to be able to make an assessment of the quality of an evacuation plan, or have the knowledge of what was best practice in relation to fire safety[2065].
9 Asked for her opinion on the extent, if any, to which this new approach affected the depth in which issues such as fire safety would be examined by inspectors, Ms Norton replied that in general terms inspection was a process of verification and sampling. It could not possibly look in depth at every single matter described in the National Care Standards. There was always, therefore, an element of risk assessment prior to any inspection in determining whether there were any obvious risk factors on the basis of what was contained in the return and self-evaluation. The Care Commission's remit was very much to focus on the experiences of people as opposed to what Ms Norton termed inputs and physical standards. The Care Commission relied on outside expertise in matters of fire safety. It was the existing practice of local authorities (in respect of residential homes run by them) to look for a letter of comfort relating to fire safety matters when a home was licensed, and for an updated letter to reflect goodwill visits after first registration. Ms Norton had experience of such a practice in local authorities and in the Care Commission, and had seen such letters many times[2066].
10 The development of the pre-inspection return and the self-evaluation document was undertaken in collaboration with people already actively involved in the regulation of residential homes, including Health Boards and local authorities. The resultant documents gave prominence to the concept of self-evaluation. Government papers at the time emphasised the importance of self-evaluation as a vital part of any regulatory regime[2067].
11 The pre-inspection return and self-evaluation documents were intended to be returned to the Care Commission. This enabled the Care Commission Officer to plan the inspection, its duration, the number of officers required, and which standards would be covered by whom. There was an annual determination at a strategic national level by the Care Commission about which standards would be covered in a service. However, the Care Commission officers had a discretion to inspect other standards of they felt that was required. Care Commission officers were expected to make judgments, on the basis of the return and self-evaluation, about whether there were any particular matters which indicated that a particular standard or area should be covered at the inspection[2068].
12 The purpose of the inspection was to verify the information contained in the Pre-inspection return and self-evaluation [2069]. The pre-inspection return for the first annual inspection by the Care Commission at Rosepark begins at p.34 of Pro. 818.
13 It was envisaged by those who prepared the inspection documentation that officers would verify information on staff training in the pre-inspection return by examining a sample of records, by observation and by interviewing staff.[2070] It is, perhaps, implicit in that statement that the Care Commission inspectors might have been expected by those preparing the documentation to do rather more than "verify the existence of procedures" rather than "report upon their adequacy (a task for which they were not trained)"[2071]. However that may be, the submissions of the Care Commission, at paragraphs 17-20 and 22, probably reflect accurately the degree of scrutiny which was brought to bear on matters of fire safety at the time of the fire at Rosepark. The fact that the National Care Standards did articulate certain expectations regarding fire safety justifies the acceptance of the Care Commission that a greater emphasis could have been placed on the process of assessment of fire safety procedures.
14 In Section Four of the Pre-Inspection return for Rosepark[2072] question 15 asked whether there was a record of fire safety drills, checks and training compliant with Fire Brigade Guidance. The purpose of this question was to allow for verification that the standards prevailing at the time of first registration were being maintained[2073].
15 Care Commission inspectors were not experts in fire safety matters. They were informed lay people. They would routinely look to see that fire extinguishers were being serviced and they might well ask selected members of staff if, during induction, they had been acquainted with the evacuation procedure and where the fire exit points were situated[2074]. What was uppermost in the thinking at this time was care for the residents[2075]. However, the fact that the National Care Standards did articulate certain expectations regarding fire safety justifies the acceptance of the Care Commission that a greater emphasis could have been placed on the process of assessment of fire safety procedures[2076].
16 The Fire Brigade Guidance referred to in the return referred to guidance by the local Fire Service. Production 221, the Fire Precautions Log Book, appears to have been the guidance operating in Strathclyde at the time[2077]
17 As regards the procedure for evacuation in the event of fire the most pressing point for the Care Commission inspectors was whether there was such a procedure, whether it was available and whether staff were aware of it. As regards training, there would not be a close analysis of what the training involved, but rather confirmation that there was training of staff[2078].
18 At the time of the fire the Care Commission did not have a policy on what was the appropriate procedure to be followed by staff in the event of a fire alarm sounding. Care Commission inspectors would not have a prescriptive view on what the content of such a procedure should be. They would wish to know that staff knew what the procedure was and be able to follow it[2079].
19 Nor did the Care Commission have a policy that bedroom doors should be kept closed at night[2080]. It should not, therefore, be surprising that Marie Paterson did not think that the Care Commission inspectors would raise as a concern a situation in which bedroom doors were left open at night[2081]
20 In section four of the Pre-Inspection return for Rosepark[2082], question 16 asked whether the premises' Risk Assessment had been reviewed in the last 12 months. At least before the fire at Rosepark the Care Commission would have been content to accept the answer given in the pre-inspection return without examining the contents of the risk assessment[2083]. Care Commission inspectors would not be experts in looking at the quality of risk assessments[2084]
21 In section four of the Pre-Inspection return, the reference in question 24 to "electrical appliances" was not intended by Ms Norton to extend to an examination of records for maintenance of the general electrical installation in the premises[2085].
22 Mrs Norton was unaware of the IEE Wiring Regulations, 16th Edition. She would not have expected the Care Commission inspectors to be familiar with them, nor would she have expected the inspectors to go looking for them [2086].
23 A letter such as is contained in Pro. 583 (letter regarding a three year contract and bearing the date 20th January 2000) would be something that would satisfy the inspectors as to the existence of a contract for the maintenance of appliances[2087]. Ms Norton also thought that the inspectors would be satisfied were they to find a record in the form of Pro. 570 in so far as it cross references with Pro. 583[2088]
24 In section four of the pre-inspection return the question (26) is asked "What was the date of the last Fire Brigade inspection of the premises?"[2089] Ms Norton explained that that was meant to be a reference to an updated goodwill letter indicating that the Fire Brigade continued to be satisfied that the position at first registration was being maintained[2090]. It was not intended to be a familiarisation visit under section 1(1)(d) of the Fire Services Act 1947[2091]. It is not apparent from Ms Norton's evidence that all Care Commission inspectors would understand the distinction[2092].
25 When the pre-inspection return was being drawn up Ms Norton understood that the Fire Brigade would attend at a care home on a goodwill basis on request and provide a report to the owner. When she worked with South Lanarkshire Council it had been the practice to encourage owners to contact the fire safety officer for a visit if they had not done so for within (say) the last two years[2093].
26 When asked what she understood to be the role of the Care Commission generally in respect of the arrangements to be made and the precautions to be taken by care homes in respect of fire, Ms Norton replied - "We were the inspecting body primarily concerned with care matters and looking at the national care standards"[2094].
27 Jacqueline Roberts, Chief Executive of the Care Commission from its inception did not consider that, in their approach to inspecting against the National Care Standards, Care Commission Inspectors should be engaging in qualitative assessments of policies and procedures relating to fire safety in care homes[2095]. What was of importance was that those policies and procedures should be in place and that they were accessible and known to staff[2096]. At the outset the Care Commission did not put a focus on fire safety policies and procedures, which - with hindsight - it probably could have done[2097]
28 Annabell Fowles, the former Head of Legal Services at the Care Commission, stated that if she had been advising the inspectors on the scope of their responsibilities for the examination of fire precautions in respect of Care Standards 4 and 5 in an existing care home, Mrs Fowles would have advised that the Care Commission's functions in terms of fire safety were those set out in regulation 19 of the 2002 Regulations[2098].
5. Approach to Training
1 The policy priorities underpinning the 2001 Act, 2002 Regulations and National Care Standards can be seen to advise the extent to which employees of the Care Commission were trained in matters of fire safety prior to the fire[2099].
2 Prior to the fire the Care Commission employed no fire safety specialist[2100].
3 Prior to the fire at Rosepark Care Commission inspectors received no specific training in fire safety[2101].
4 Mala Thomson, who was the leader of the Inspection Team that included Marie Paterson and Morag McHaffie, did not receive any fire safety training or advice when she took up employment with the Care Commission. She received no guidance from the Care Commission, or any other source, as to what fire safety standards were considered acceptable to the Care Commission[2102]. She could recall no specific training on the terms of the 2001 Act and 2002 Regulations[2103]. Mrs Thomson did not, however, undertake inspection work. She would not dispute the contents of inspection reports because they reflected decisions taken by inspectors on the ground[2104]. Her supervision of the team was more concerned with seeing how it was managing its workload in terms of meeting Care Commission targets[2105]
5 In summary, Mrs Thomson did not expect the inspection teams to have any expertise in fire safety[2106]. The inspectors were trained social workers and nurses, not fire safety experts[2107].
6 In that state of affairs it is not surprising that Marie Paterson, whose casework covered Rosepark[2108], did not consider that she was qualified, in terms of the training she received, to assess the appropriateness of policies and procedures relating to fire safety[2109].
7 Nor is it surprising that Morag McHaffie, Mrs Paterson's colleague on the first annual inspection of Rosepark in 2003, did not consider herself to be equipped, in terms of the training she received, to carry out an assessment as to whether a particular emergency or evacuation procedure was appropriate or otherwise[2110]. Prior to the fire at Rosepark she did not have an understanding of what was an appropriate procedure to be followed in the event of a fire alarm sounding[2111]
6. The Inspections by the Care Commission at Rosepark
1. Rosepark Care Home received its first inspection by inspectors employed by the Care Commission on 20th March 2003[2112].
2. The inspection team comprised Marie Paterson and Morag McHaffie.
3. The date of the inspection was determined by the fact that it had been ascribed green flag status following the transfer of responsibilities of Lanarkshire Health Board for the regulation of nursing homes to the Care Commission after 1st April 2002[2113].
4. Green flag status, under the arrangements described in evidence by Marie Paterson meant that Rosepark was seen as low risk and, therefore, did not merit priority for a visit by the Care Commission inspectors[2114]
The Document Checklist
1. In relation to the procedure for inspection there was a checklist of documents required of care homes, of which page 4 of production 818 was an example from the Rosepark file. It would be handed over to the person in charge of the home at the time of the inspection in order that the required documentation could be produced[2115].
2. Amongst the documents on the checklist required for the first inspection of Rosepark by the Care Commission were both risk assessment documentation and a Firemaster's report. The risk assessment documentation included the risk assessment under the Fire Precautions (Workplace) Regulations 1997[2116].
3. Risk assessments in the context of the Fire Precautions (Workplace) Regulations 1997 were amongst the records that the inspectors of the Care Commission would be looking for[2117].
4. The inspectors would be looking to see if there was a risk assessment in place. However, they would not form a judgment as to whether the risk assessment was an effective one or not. The inspectors would look to see if the risk assessment generated a completed action plan to avoid or minimise risk[2118]. They were not, however, qualified to determine whether it was an appropriate action plan or not[2119], and did not do so. The inspectors were not instructed to assess the risk assessment[2120].
5. The Firemaster's report was understood to be a letter which indicated that the Fire Service had visited the premises. Miss McHaffie did not know what it signified and, prior to her inspection of Rosepark in 2003, no one had explained to her what a Firemaster's report was[2121].
6. Mrs Paterson's understanding was that the Firemaster's report related to the original goodwill letter at the time of first registration. She did not understand the Fire Service to have any ongoing role in care homes in relation to fire precautions or fire safety[2122]. Her understanding appeared to be at odds with that of Ms Norton. Ms Norton thought that there was a process whereby the goodwill letter was updated to reflect the Fire Service's continued satisfaction with the premises[2123]. As the Care Commission's submissions properly acknowledge, it is clear that, as far as Care Homes in the area of operation of Strathclyde Fire and Rescue Service, were concerned, no formal certification existed after the issuing of the initial goodwill letter[2124]
7. In the checklist the reference to a "fire log" was a reference to the recording of fire alarm tests and fire drills[2125]. Miss McHaffie recollected that the Fire Register, production 27, as being the fire log at the time of her inspection of Rosepark[2126].
8. As regards maintenance arrangements the checklist required of Rosepark the provision of maintenance contracts for equipment[2127]. Miss McHaffie expected to see more than an offer to continue providing services such as was contained in the letter bearing to be dated 1 February 2000 under the heading "Alex Ross Electrical". She would expect to have seen a maintenance record that showed that work had been done[2128].
9. Conversely, that part of the document bearing the heading "Forms of Completion and Inspection Certificate" comprising production 570 relating to 1st February 2003 would have satisfied Miss McHaffie that there had been an inspection and test of the electrical installation on 1st February 2003[2129].
10. As regards training in fire safety, the inspectors would look at induction training records and also ask staff if they received training. In relation to fire drills, Miss McHaffie had no recollection of discussing fire drills with any of the staff at Rosepark. She could not say if the matter had come up[2130].
The Pre-inspection Return
11. The first pre-inspection return by Rosepark to the Care Commission was completed and returned in December 2002[2131]. It was completed on behalf of Rosepark[2132]. There are set out in the succeeding paragraphs those points which may be thought to be of relevance. Page numbers refer to production 818.
12. On page 46 there is an apparently incomplete list of staff[2133].
13. Pages 49-50 contain information about staff training. On page 50 there is a record of fire prevention training in 2002 affecting 19 members of staff. That number was less than the entire staff of the home[2134], and should have been of concern and triggered an examination of staff training records[2135].
14. Section Four of the return, at pages 57-58, is concerned with "Record Keeping and Administration". Question 15 invites a response to the question "Is there a record of fire safety drills, checks and training compliant with Fire Brigade guidance?"
15. Miss McHaffie was asked to confirm her understanding of the expression "Fire Brigade guidance" in question 15. She stated that some care homes used a document produced by the Fire Brigade which clearly indicated the expected frequency of fire drills, fire alarm tests, and checks of emergency lighting[2136]. Miss McHaffie understood the guidance to refer to something akin to production 221, the Strathclyde Fire Brigade Fire Precautions Log Book[2137], which was present, but not in use, at Rosepark.
16. Mrs Paterson did not know what was meant by "Fire Brigade guidance" at the time of the inspection of Rosepark. That being so she was not in a position, as an inspector, to carry out the comparison exercise required by question 15[2138]. Mrs Paterson was disposed to accept that the guidance equated to the Fire Precautions Log Book, production 221[2139]
17. Miss McHaffie understood that fire drills should take place twice per year[2140]. That understanding accorded with Mrs Paterson's local authority experience. The frequency of fire drills was something that the inspectors would endeavour to establish by reference to the records of the home[2141].
18. On page 58, the return asked whether the premises risk assessment had been reviewed in the last 12 months. The answer given was in the affirmative. That was something that Miss McHaffie would have followed up[2142].
19. The inspectors would be concerned to establish that a risk assessment existed and was in place. They would have a quick look through it, but they would not analyse its contents[2143]. In the Risk Assessment of 6th January 2003 conducted by James Reid, page 8, section F1, there was a statement that employees had not been practised in fire drills which should be carried out at six monthly intervals. If read by them, this would have been followed up by the inspectors[2144]
20. On page 58, the return confirmed that there were current maintenance contracts for electrical appliances. Miss McHaffie would have followed that up by looking for some evidence of ongoing maintenance[2145].
21. On page 59, question 25 was concerned with the date of the last Fire Brigade inspection. The answer given was "July 02" and the annotation "No reports given any more". Mrs McHaffie stated that she would have checked for a record that the Fire Brigade had attended in July 2002. There is no record in any production of a Fire Brigade visit on that date[2146]. Miss McHaffie conceded the possibility that this information may have been taken at face value at the inspection. She accepted that she could not have seen a goodwill letter after 1992[2147].
22. On page 59, the answers confirmed the existence of written health and safety policies and procedures, a premises risk assessment, and an emergency evacuation plan. Under reference to this part of the return Miss McHaffie confirmed that she did not have any understanding of what was an appropriate procedure to follow in the event of a fire alarm sounding[2148].
23. The return was signed by Sarah Meaney on 10th December 2002[2149]
24. Prior to the fire the approach of Miss McHaffie to the examination of a fire notice (with an emergency procedure on it) was to confirm the existence of such a procedure, rather than make an assessment of its quality[2150].
The Self Evaluation Document
25. The self-evaluation was directly referable to the care standards which would be the subject of the forthcoming inspection[2151]. References hereafter are to page numbers in production 818.
26. On page 71, the evaluation by Sarah Meaney, under care standard 4, stated that "we have fire alarm checks every week and planned fire drills" without any stipulation as to the frequency of those drills[2152].
27. On page 72, the evaluation by Sarah Meaney, under care standard 5, stated that "Staff training is ongoing at Rosepark, we consider training a priority and our staff undergo continual and updated training, both in-house and externally." There was no critique in the self evaluation about any lack of training in any particular respect[2153].
28. The key standards being examined at the forthcoming inspection were to be those numbered 4, 5, 6, 13, and 15[2154].
29. The pre-inspection return and self-evaluation were returned on 12th December 2002[2155].
The First Inspection of Rosepark by the Care Commission
30. The first inspection, an announced inspection, took place on 20th March 2003[2156].
31. Marie Paterson was the lead inspector. She was responsible for drafting up the report after the inspection[2157]
32. The inspection involved a request for the documents in the checklist to be handed over. The normal procedure was for the inspectors to walk around the premises and note what they observed. They would speak to both staff and residents, observe activities, compare notes and give feedback to the owner or person in charge[2158]. Miss McHaffie thought that the inspection may have lasted up to a day[2159]
33. Miss McHaffie appeared to accept that she looked at the paperwork provided in relation to matters of fire safety[2160]
34. Both Miss McHaffie[2161] and Mrs Paterson[2162] took notes during the inspection on a form that is designed to relate to the care standards being examined.
35. Mrs Paterson's notes revealed the following (the page numbers relating to production 818)[2163]:
· Apart from the owners and Sarah Meaney[2164], the inspectors are recorded as having spoken to 1 nurse and 2 care assistants. They are recorded as having spoken to 4 residents[2165];
· In the Evaluation for standard 4 there was no entry for 4.9 - You receive information about what to do in the event of a fire or other emergency. Mrs Paterson stated that she was not looking at that area of inspection[2166];
· In the Evaluation for standard 5 Mrs Paterson recorded "Good training, Policy and Procedures File, Good Induction, Appropriate policy and Procedures". These included policies and procedures relating to fire safety, and staff training in relation to them[2167];
· Miss McHaffie inspected this standard[2168];
· Although the word "appropriate" was used it is probable that the inspectors would have just accepted the fact that there was a policy there[2169]. Miss McHaffie stated that the fire notice comprising production 656 would have satisfied her as to the existence of a procedure in the event of a fire alarm sounding[2170]. For reasons which she was unable to explain, Miss McHaffie said that she would not have taken action if she came upon a fire notice like production 654, which had not been filled in[2171];
36. Miss McHaffie's notes revealed the following (the page numbers relating to production 818)[2172]:
· In the Evaluation for standard 4 there was no entry for 4.9 - You receive information about what to do in the event of a fire or other emergency. Miss McHaffie could not recall why that was;
· In the section of the notes concerned with standard 5[2173], Miss McHaffie noted that there was a staff training matrix which equated to the matrix in Isobel Queen's employment records[2174] and that this included a fire lecture and orientation[2175]. There were no notes in that section explicitly referring to policies and procedures relating to fire safety. They were probably not looked at[2176]. On page 114, the reference to "A Ross Electrical - 3 Yr" would have been derived from the records of Rosepark, and appeared to be confirmed by production 215, page 3, being a letter dated 1st February 2003, which would have satisfied the inspectors[2177]. If the inspectors had discovered that such cover as was described in that letter was not in fact available they would have taken steps to require 24 hour cover[2178]
· Miss McHaffie would not have enquired about the extent to which the fire drill referred to on page 114, which was noted to have taken place on 3 February 2003, covered the whole workforce[2179]. What the inspectors were checking was that there was education and training in fire, and fire drills going on. They did not apply their minds to the details were or what was involved[2180].
37. At the inspection Miss McHaffie did not recall any checks being made to the door closers[2181]. It is unlikely that any concern would have been raised about door closers that had either been removed or disconnected and, in any event nobody had instructed the inspectors that there was an issue of concern in the disconnection or removal of door closers[2182].
38. If Miss McHaffie had discovered at the inspection that bedroom doors were routinely kept open at night that would not have caused her concern[2183]. Conversely, it would have been a matter of concern to Mrs Paterson. If there was such a practice, and it had been discovered, then Mrs Paterson would have raised the matter with her manager. She would also have referred to the issue in the report[2184]. Having regard to the terms of the report one may infer that such a practice was not discovered. In any event, standing the position outlined in paragraph 32 of the submissions for the Care Commission, it is questionable whether the raising of any concern by Mrs Paterson would have resulted in any follow up by the Care Commission.
39. If Miss McHaffie had discovered that members of the night staff at Rosepark were overlooked where fire drills were concerned she would have recorded that in her notes. That she did not do so indicated that it was a situation which was not discovered[2185].
40. In any event, according to Mrs Paterson, it would not have been of particular interest for the inspectors to know what proportion of staff participated in fire drills. Mrs Paterson's understanding of the position, probably derived from her local authority experience, was that there should be two drills per year. That might mean that some staff didn't take part. Only after the fire was it appreciated that this was a matter requiring to be addressed[2186].
41. Although Miss McHaffie thought that the Care Commission required six monthly fire drills, the fact that they had not been occurring with that level of frequency was not discovered at the inspection[2187].
42. If Miss McHaffie had discovered that the procedure on the sounding of a fire alarm at Rosepark did not involve an immediate call to the Fire Brigade she would have been concerned. But the inspection did not get down to that level of detail[2188].
43. Mrs Paterson considered it undesirable that there should be any discrepancy between the terms of the home's fire notices (and in particular production 656) and the procedure adopted in practice by staff on the occurrence of a fire alarm[2189]. Were any such discrepancy to have emerged at the inspection it would have been recorded in the inspection report[2190]. One may infer from the terms of the report that it was not discovered
44. If any concerns had been raised during the inspection about the manner in which fire safety training was undertaken at Rosepark then that would have been recorded in the contemporary notes or the subsequent inspection report[2191].
45. Miss McHaffie would not, in 2003, have regarded a closed electrical distribution box as a fire hazard. She was unaware of any view within the Care Commission about the safe storage of aerosols[2192]
The Inspection Report
46. The report of the inspection was sent to Mr and Mrs Balmer by Mala Thomson under cover of a letter dated 20th June 2003[2193].
47. The report was for the benefit of not only the owners but also the general public, who may read and rely upon it[2194].
48. A draft of the report was sent to Mr and Mrs Balmer for comment in advance of publication of the final report[2195]
49. The letter advised that a certificate of registration (to supersede the old Health Board Certificate) would be issued in due course[2196].
50. No issues of concern relating to fire safety and training were raised in the report[2197].
51. Under reference to care standard 4, the inspectors reported:
"Service users and staff are aware of what to do in the event of a fire and all relevant fire safety information and tests were recorded"[2198]
52. The report made no reference to any discrepancy between the procedure contained in the home's fire notices and the procedure adopted in practice on the sounding of a fire alarm. Standing that there was such a discrepancy, the statement from the inspection report just quoted was inaccurate[2199]. On the evidence it is reasonable to infer that no such assessment was made.
53. The only recommendation arising out of the examination of care standard 4 was concerned with the fitting of locks to bedroom doors[2200].
54. Under reference to care standard 5, the inspectors reported:
"The Service has appropriate policies and procedures regarding...fire safety..."[2201]
There would be included in that description the procedure for what to do in the event of a fire alarm sounding[2202]. The statement in the report would require to have been supported by an assessment by the inspectors of the procedure itself[2203]
55. If Mrs Paterson had received specific training in fire safety policies and procedures she would have felt better qualified to make the statement just quoted[2204].
56. None of the recommendations in the report arising from the inspection under care standard 5 concerned fire safety[2205]. The remaining standards 6, 13 and 15 are not pertinent to fire safety[2206].
The Follow -Up Inspection
57. The follow-up inspection was unannounced. It focused on the recommendations in the annual inspection report, and therefore on matters that had already given rise to concern[2207].
58. The date of the follow-up inspection was 17th November 2003[2208]. It was conducted by Marie Paterson[2209]
59. Rosepark was regarded as a low risk service. This had a bearing on the level of scrutiny that was brought to bear on the service in the follow-up inspection[2210].
60. The basis of the follow-up report[2211] was to concentrate on the requirements of the previous inspection[2212].
61. There was no inspection of any documentation bearing upon the question of fire safety[2213].
62. Having been sent out in draft to the owners for comment the final interim inspection was signed by Mrs Paterson on 19th December 2003[2214].
Preparations for the 2004 Annual Inspection
63. On 8 January 2004 Marie Paterson intimated to Sarah Meaney that the annual announced inspection of Rosepark was planned for 24th and 25th February 2004. Mrs Paterson enclosed the pre-inspection return and self-evaluation document for completion by the home[2215].
64. Care standards 3, 9, 11, 12 and 13 were to be the subject of inspection[2216]. According to Mrs Paterson's understanding, care standards 2, 3 and 4 each called for consideration of matters of fire safety[2217].
65. A pre-inspection return was completed by Sarah Meaney and submitted to the Care Commission[2218].
66. In section four[2219] - Record Keeping and Administration - the return informed (i) that there was a record of fire safety drills, checks and training compliant with Fire Brigade guidance; (ii) that the premises' risk assessment had been reviewed in the last 12 months; (iii) that fire safety equipment had been last checked on 19th January 2004; (iv) that the last check of the electrical appliances was April 2003; (v) that no date had been inserted for the date of the last Fire Brigade inspection; and (vi) that there was a plan for emergency evacuation and a contingency plan[2220].
67. The pre-inspection return was signed by Miss Meaney on 12 January 2004[2221].
68. In the self-evaluation document[2222], under reference to Key Standard 3, this was said on behalf of Rosepark:
"You can be confident that you will be living in a safe environment. We adhere closely to all relevant legislation on health and safety, fire safety and environmental health. We have independent health and safety advisers who inspect Rosepark and compile a policy manual in all aspects of safety and risk assessments. We are registered with Strathclyde Fire Brigade and have a state of the art fire alarm installed for your safety. The alarm is tested weekly."
Mrs Paterson would have known that Rosepark was not registered with Strathclyde Fire Brigade because no care home was registered with the Fire Authority[2223]
69. On the same page of the return relating to key standard 3, there has been entered under "Areas for Development/Improvement" the words "Continued fire safety training for all staff"[2224].
70. Mrs Paterson stated that this would be a matter that would be followed up at the annual inspection. In the result the fire intervened and the inspection did not take place[2225].
7. Concluding Observations
1. The evidence led at the Inquiry demonstrates that the Care Commission did not set out to examine fire safety issues in any depth. Rather, its approach, derived from the 2002 Regulations and National Care Standards, was one which concentrated, if anything, on a process of verification. It is plain, through no fault of their own, that the inspectors who visited Rosepark were not qualified to examine matters of fire safety in a way which was likely to uncover defective practices and procedures. The concern which must necessarily arise from that state of affairs is that the inspection reports generated by such an approach to inspection could potentially be misleading in terms of the level of reassurance they afforded users and the public in matters of fire safety. By way of illustration it cannot be said of Rosepark, as the inspectors found in 2003, that (i) service users and staff were aware of what to do in the event of a fire and that all relevant fire safety information and tests were recorded, or (ii) there were in place appropriate policies and procedures regarding fire safety[2226]
CHAPTER 28 (Formerly 23) - THE EVENTS OF 30-31 JANUARY 2004
The purpose of this chapter is to provide a detailed factual narrative of the events of the night of 30-31 January 2004, as disclosed in the evidence of members of staff at Rosepark, officers of Strathclyde Fire and Rescue Service, and members of the Scottish Ambulance Service. It picks up at the back shift on 30 January 2004 and considers the events of the night shift before the outbreak of the fire, the response to the fire itself, and the fire and rescue operations which unfolded upon, and after, the arrival of the first fire appliances.
Events Preceding the Night Shift
1. The nurse in charge of the backshift on 30th January 2010 was Phyllis West[2227]. With her were Elizabeth Mortimer, Theresa McKenna, Sheila Lees, Liz Hamilton, Tracy Farrer and, possibly, Jacqueline Cowan and Jacqueline Higgins[2228]. Ms West had cause to visit cupboard A2 during her shift in the context of having to assist Ellen (Helen) Milne in room 13. This was probably between 7 and 8pm[2229].
2. During the backshift one of the care assistants on duty would attend to the laundry[2230]. Tracy Farrer was on the laundry rota for the evening of 30th January 2004[2231].
3. Although her recollection of the shift was unclear Miss Farrer was able to confirm, with the assistance of her police statements dated 9th and 20th February 2004, that (i) she put on a load of underwear in the white top loading machine[2232], (ii) she put on a load of tea towels left by the kitchen staff in either the red or yellow washing machine (her evidence on this point being based on the that there would normally be towels to be separated out)[2233], and (iii) she left the machines to run their cycle[2234].
4. Miss Farrer's evidence was that if she had used the yellow (Minnet) washing machine she would pressed the third button down, the figure "40" would come up on the digital display, and there would be no need to adjust the temperature because the figure "40" related to 40 degrees[2235]. If she had used the red machine Miss Farrer would have turned the dial to "40" and pressed the start button next to the dials[2236]
5. Under reference to the statement of 9th February 2004 Miss Farrer confirmed that her normal practice would be to put any towels requiring to be done in the smaller of the two washing machines, that she would always put the washing on at 2030 or 2045 hours, and that the washing would be left for the domestics to unload in the morning[2237]. There was nothing unusual about 30th January 2004 so it was likely that Miss Farrer would have followed her normal practice[2238].
6. Ms West's shift ended at 2130 hours[2239]. She handed over to Ms Queen at about 2115 hours. Mr Norton was also there; there was nothing of note to report[2240]. Ms West thought that the last time she visited corridor 4b would have been towards the end of her shift and she noticed nothing untoward[2241].
7. The nightshift for the night of 30th/31st January 2010 comprised Isobel Queen (Nurse in Charge), Brian Norton (a Registered Mental Nurse), Yvonne Carlyle (Care Assistant) and Irene Richmond (Care Assistant).
8. Miss Queen did not consider that the title of nurse in charge conferred any particular responsibility[2242]. The (quite erroneous) view she expressed was that she did not bear any more responsibility that Mr Norton and they worked together as a team[2243]. Ms Queen did not consider that the nurse in charge had any particular responsibilities which were different from anyone else on duty on the night shift[2244]
9 At the time of the fire Ms Queen knew where the fire extinguishers and break glass points were. However, she did not know what the Home's fire procedure was. If the fire alarm sounded she did not know what procedure she was meant to follow[2245]. What she said she would have done was to attend at the fire panel, establish which zone was indicated and go and investigate for signs of a fire. If she had located a fire Ms Queen said that she would telephone the Fire Brigade, or delegate this task to another, and then start evacuating residents from the affected area. If she had found no signs of a fire she would have contacted Joe Clark[2246].
10 In the result that was the procedure which was followed on 31st January 2004;
Activities and Movements of Night Staff Before the Fire Alarm
Brian Norton
11 Brian Norton's shift started at 2115 hours. He was on duty with Staff Nurse Isobel Queen and care assistants Yvonne Carlyle and Irene Richmond. Isobel Queen was the nurse in charge[2247];
12 Mr Norton changed in the room immediately to the left of the entrance to the staff quarters on the lower floor[2248];
13 Mr Norton was present at the handover from the backshift. He annotated the handover list (production 562)[2249];
14 Once the report had been given Mr Norton and Isobel Queen proceeded to administer the nightly medication[2250]. They started in the dayrooms followed by the bedrooms on the upper floor, then took the medicine trolley to the lift and descended to the lower floor to administer the nightly medication there[2251];
15 Mr Norton's understanding was that while he and Ms Queen were attending to the medications the care assistants were putting residents to bed[2252];
16 On completion of the medication round Mr Norton returned to room 9. He had noticed that a dressing on Julia McRoberts' leg required attention. He dealt with this at about 2330 hours - midnight[2253]. In order to do so, Mr Norton would require to have (i) gone to the treatment room, which was off the foyer, and obtained a fresh bandage, (ii) attended at room 9 to change Miss McRoberts' bandage, and (iii) disposed of the old bandage in the treatment room. In doing so Mr Norton observed nothing out of the ordinary[2254];
17 Mr Norton then returned to the Rose Lounge in order to assist with putting the remaining residents to bed. Mary McAlinden and Jean Patterson were still up. He took Mrs McAlinden to her room (room 28) on the lower floor by way of the lift. He did not notice anything untoward when doing so[2255];
18 Having put Mrs McAlinden to bed Mr Norton and Isobel Queen conducted a round of checks of the bedrooms of the lower floor. It is probable that this round was not completed until about 0100 hours. Mr Norton thought that the round took about one hour to complete[2256]. If Mrs McAlinden was put to bed at the later of the times suggested by Mr Norton then the round of the lower floor would indeed have been completed at about 0100 hours. This was the time given by Mr Norton to the police when he gave a statement on 8th February 2004[2257]. Mr Norton noticed nothing out of the ordinary or unusual to this point, least of all any residents smoking in their rooms. Indeed, in all the time that Mr Norton worked at Rosepark he had never seen any residents smoking in their room[2258].
19 At about 0130 hours Mr Norton noticed that Bob Innes' buzzer was going off intermittently. He descended to Mr Innes' room (35) on the lower floor. It was not possible to settle him so Mr Norton and Isobel Queen brought him up in the lift to the dining room and made him a cup of tea. He noticed nothing unusual in the time that he went down to, and returned from, the lower floor[2259].
20 After attending to Mr Innes it is probable that Mr Norton had a break and a smoke in the smoking room off the Rose Lounge[2260];
21 At about 0215 hours Mr Norton heard Nana Murphy's call buzzer sounding. She also was restless. Mr Norton described attending to her on about 8 occasions between 0215 and 0300 hours[2261] and deciding to sit in with her and settle her down, which he did until about 0400 hours[2262].
22 Mr Norton sat with Nana Murphy on the lower floor. He noticed nothing untoward until he heard a thump as Mrs McAlinden in room 28 fell from her bed[2263]. Mr Norton discovered that she had quite a large bump on her head. He summoned assistance in order that Mrs McAlinden could be taken upstairs and ice applied to her head[2264];
23 Mr Norton and Ms Queen conveyed Mrs McAlinden to the Rose Lounge in a wheelchair. Mr Norton walked out of the lift backwards pulling the wheelchair. He did not notice anything unusual. He did not hear any noises or see, or smell, any smoke[2265];
24 Mr Norton asked Yvonne Carlyle to get an ice pack for Mrs McAlinden's head. On being told that there were no ice packs he asked her to get a pillow case and fill it with ice. After Miss Carlyle returned Mrs McAlinden wished to be taken to the toilet. Mr Norton took her to the toilet outside the Rose Lounge on the right hand side of the foyer. Up until this point Mr Norton had noticed nothing unusual. While assisting Mrs McAlinden in the toilet Mr Norton heard the sounding of the fire alarm[2266].
25 Mr Norton did not go into cupboard A2 or look inside it on the night of the fire, nor did he notice anything untoward about it[2267]
Yvonne Carlyle
26 Miss Carlyle, meanwhile, had started work at 2030 hours[2268];
27 Her first duty when her shift began was to assist to bed those residents who were still up. On this particular night she helped Mrs MacLachlan to have a shower in the shower room near to room 9[2269]. This took about 15-20 minutes[2270]. Miss Carlyle then assisted Mrs MacLachlan to bed in room 20 (which, as appears from her evidence, Miss Carlyle mistakenly recollected was at the lower level[2271]). Thereafter, with the assistance of Irene Richmond, Miss Carlyle put to bed Jessie Hadcroft, Nana Murphy, Bob Innes, Jim Daly, Annie Thomson and Jean Patterson[2272]. Jean Patterson was put to bed at about 2345 hours[2273]. She and Mary McAlinden were the last residents to be taken to bed[2274]
28 After putting these residents to bed Miss Carlyle and Mrs Richmond conducted a round of the whole of the upper floor. This round lasted about 20-30 minutes and started at the far end of corridor 4, in room 13. Miss Carlyle observed nothing untoward during the course of the round[2275]. She remembered seeing Thomas Cook (room 16) in his bed between midnight and 0030 hours. His door was open at the time and he was asleep[2276]
29 Miss Carlyle was asked whether she had any cause to go into cupboard A2 on the night of the fire[2277]. On the round of the upper level bedrooms, at about midnight[2278], Miss Carlyle had gone to the cupboard to retrieve a roll of tissue. She saw white tissue roll through the door of cupboard A2 which was then ajar. She reached in and took out a roll. The door was just slightly open, sufficient to enable her to put her hand in and take out a roll of tissue. Ms Carlyle thought that she had left the door ajar as she had found it[2279];
30 Miss Carlyle recalled that both Bob Innes and Mary McAlinden were brought up to the Rose Lounge because they were unsettled[2280]. After he had brought Mrs McAlinden upstairs Brian Norton asked Miss Carlyle to get an ice pack for her head. Miss Carlyle fetched a pillow case from the trolley which was then outside room 3. She left the trolley there and obtained ice from the kitchen[2281]
31 Having brought the ice and pillow case for Mrs McAlinden, Miss Carlyle heard, and answered, a buzzer from Richard Russell in room 6[2282]. Mr Russell wished his incontinence pad changed. Miss Carlyle took the old pad along the corridor to the sluice room opposite cupboard A2 in corridor 4[2283]. Having disposed of the pad Miss Carlyle returned along the corridor. She was heading to the Matron's office to read some paperwork. On her way there Miss Carlyle was either buzzed or hailed by Mr Russell who wished his door to be closed over a little more. Miss Carlyle pulled the door to within 2 inches of being fully closed. She then headed to the office[2284]. She remained in the office for only a very short period of time (described as 5-6 minutes) when another buzzer, for either room 18 or 27, sounded. Miss Carlyle was about to leave, or had just left, the office when the fire alarm sounded[2285]. She observed the fire door at corridor 1 beginning to close[2286].
32 Mr Norton recalled that Miss Carlyle was away looking for a pillow with ice for about 5 minutes. On her return both Mr Norton and Miss Carlyle remained with Mrs McAlinden for about 5 minutes (but again the estimate was not to be taken literally but communicated but a short period of time). A buzzer sounded (which can only have been the buzzer answered by Miss Carlyle at room 6). Miss Carlyle had been away for about 3-4 minutes when Mrs McAlinden said that she needed to visit the toilet[2287]. It was, of course when Mr Norton was with Mrs McAlinden that the fire alarm sounded.
33 The question which of rooms 18 and 27 called was not resolved in Miss Carlyle's evidence. Support for the view that it was room 18 can be found in the evidence of Irene Richmond. She recalled a buzzer sounding while she was outside Nana Murphy's room (27) on the lower floor. The buzzer related to either room 16 or room 18. It was whichever room was occupied by Margaret Gow. Mrs Richmond heard footsteps on the upper level which she thought were in answer to the call. Mrs Richmond accepted as a possibility that there was more than one buzzer but Margaret Gow was the only name she mentioned (both in evidence and to the police) in connection with the occurrence of a buzzer[2288].
34 Apart from visiting cupboard A2 to obtain the roll of white tissue Miss Carlyle was along at that end of the upper level corridor on a number of occasions during the shift. The laundry cupboard was there. However, Miss Carlyle did not notice anything unusual in any of her visits to corridor 4 throughout the shift prior to the fire alarm[2289].
Irene Richmond
35 Irene Richmond commenced her shift at 2100 hours[2290].
36 Until the point when the fire alarm had sounded Mrs Richmond had not noticed anything untoward on the night of the fire (apart from some problem of buzzers sounding without having been activated)[2291].
37 Mrs Richmond did recall that Isabella MacLachlan was found in room 9 during one of the routine bed checks although a sensor, designed to alert staff, had not activated[2292]. This was a while before the fire started[2293].
38 Otherwise, Mrs Richmond had passed all the way along the upper floor corridors on numerous occasions during the night, doing hourly checks and answering buzzers, and saw nothing else untoward[2294]
39 Mrs Richmond did not have cause to look into cupboard A2 on the night of the fire. She was aware that Yvonne Carlyle may have obtained more white tissue although she was unsure whether that came from the cupboard[2295].
40 Certain of the residents at Rosepark were known wanderers. Mrs Richmond referred in this context to Isabella MacLachlan, Helen (Ella) Crawford, Mary Dick, Thomas Cook, Betty Blakeland, and Mary McAlinden[2296]. Apart from Mrs MacLachlan Mrs Richmond could not recall any of the other known wanderers being up and about on the night of the fire[2297].
41 When the fire alarm sounded Mrs Richmond was sitting with Ms Queen outside Nana Murphy's room on the lower floor[2298].
42 Prior to the fire alarm sounding Mrs Richmond and Ms Queen had placed Nana Murphy on a commode in her room and then returned to the lower corridor. Brian Norton had been down at Nana Murphy's room before them, and they had been outside room 27 for quite a while[2299].
43 Before the fire alarm sounded Mrs Richmond heard the nurse call buzzer sound. She thought that the buzzer was for either room 16 or room 18. It was whichever room Margaret Gow was occupying. According to Mrs Richmond, Ms Queen had gone to the nurse call panel and established that it was a buzzer from upstairs which would be answered by either Miss Carlyle or Mr Norton. Mrs Richmond heard footsteps overhead which she assumed was one of them responding to the buzzer (although she was not "100%" sure that this was before or after the buzzer). Mrs Richmond also agreed that it was possible that more than one buzzer sounded[2300].
44 When the fire alarm sounded both Mrs Richmond and Ms Queen went upstairs to the fire panel. They went along the lower floor and ascended the stairs at the lift[2301].
45 Mrs Richmond did not have cause to look into cupboard A2 on the night of the fire[2302]
Isobel Queen
46 Ms Queen's shift started at 2115 hours[2303];
47 She was on duty with Mr Norton, Miss Carlyle and Mrs Richmond[2304];
48 Miss Queen recalled nothing untoward occurring during the nightshift prior to the fire alarm sounding[2305]
49 Isabella MacLachlan, a non smoker,[2306] had wandered out of her room. Ms Queen had found her in room 9 during a check of the residents of the upper floor which Ms Queen had undertaken with Mrs Richmond between 0300 and 0400 hours. Everyone else at that time was asleep in their rooms. Ms Queen took Mrs MacLachlan back to room 20[2307];
50 At about 0400 hours Ms Queen and Mrs Richmond went down to the lower floor. Their purpose was to relieve Brian Norton. Mr Norton had been looking after Nana Murphy in room 27[2308].
51 At about 0420 hours Ms Queen and Mrs Richmond placed Nana Murphy on a commode within her room. They sat outside her room while she was on it. It was then that the fire alarm was heard to sound. Ms Queen and Mrs Richmond headed up to the panel[2309].
52 Ms Queen did not go into cupboard A2 on the night of the fire. She had last been in that cupboard about 6 weeks previously[2310].
53 Shortly before 0428 hours a fire in cupboard A2 ignited. Within a few minutes it reached the stage of flaming ignition, developed rapidly, and then lasted for between 7 and 10 minutes before effectively extinguishing for lack of oxygen[2311]
54 The fire alarm sounded shortly before 0428:29 hours. This is the start time (corrected from 0532:48 hours) for a sequence of footage on CCTV up to 0533:40 (0429:21) hours when Yvonne Carlyle, and then all three female members of staff, approach the fire panel in the foyer[2312].
55 From the foregoing discussion of the evidence about staff movements before the fire alarm sounded it can be asserted with confidence that Miss Carlyle was the last member of staff in corridor 4 before the fire alarm sounded. Why? Because (i) Mr Norton had been sitting with Nana Murphy and was then attending to Mrs McAlinden when Miss Carlyle answered the buzzer from room 6 which took her along to the sluice room; (ii) Miss Carlyle did not visit the sluice room until after Mrs McAlinden had reached the Rose lounge because she had first to retrieve the pillow case and ice for her head; (iii) from about 0400 hours, and certainly after Mr Norton took Mrs McAlinden upstairs, Mrs Richmond and Ms Queen were outside Nana Murphy's room and they remained there until the fire alarm sounded[2313].
56 It is likely that Miss Carlyle was in the vicinity of the sluice room, and cupboard A2, within a few minutes of the fire alarm sounding. Even allowing for an additional minute for Miss Carlyle to re-adjust the position of the door to room 6 she cannot have been in corridor 4 earlier than 0421 hours (1 minute to deal with the door and 5-6 minutes to cover Miss Carlyle's estimate of the time she spent in Matron's office before the alarm sounded). It was probably later[2314]. Miss Carlyle did not intend her estimate of 5-6 minutes to be taken literally[2315]. She intended only to communicate the idea of a very short period of time.
Smoking Issues
57 At the time of the fire Mr Norton was a smoker[2316]. Miss Carlyle was also a smoker[2317]. Irene Richmond did not smoke[2318].
58 There is no evidence that either members of staff or residents smoked cigarettes other than in designated areas on the night of the fire.
59 In all the time he worked at Rosepark Mr Norton never saw any residents smoking in their room. If he had noticed evidence of smoking activity he would have dealt with it[2319]
60 If Miss Carlyle had smelt smoke in the corridors she would have reported it to the nurse in charge[2320]. One can reasonably infer from the fact that she returned from the sluice room to Matron's office immediately before the fire that Miss Carlyle did not smell any cigarette smoke in corridor 4 at that time.
61 If Mrs Richmond had smelt smoke in the corridors she would have considered that to be unusual and she would have reported the matter to the nurse in charge[2321].
62 There is no evidence that anyone on the night staff other than Brian Norton and Yvonne Carlyle smoked within the building.
63 There were understood to be two designated smoking areas in Rosepark. One was in the room, described as the "Staff Dining Room" in Production 1744, off the Rose Lounge[2322]. The other smoking room was on the lower floor and is shown in photograph 881F[2323].
64 When he smoked, Mr Norton used one or other of these areas (and just possibly the staff kitchen on the lower floor[2324]), and his understanding was that the other staff smokers did likewise[2325]. If a buzzer were to sound while he was having a cigarette in the staff dining room Mr Norton would be able to hear it. He would extinguish his cigarette and attend to the resident who had called[2326]. Mr Norton's practice was to stub out his cigarette and leave his cigarettes and lighter behind if he was called away[2327].
65 Although Mr Norton was shown a photograph of a packet of "Dorchester" cigarettes in the staff kitchen[2328] he did not recall smoking that brand of cigarettes. He did, however, agree that it was possible that the "Mayfair" cigarettes in the room shown in photograph 881F may have been his[2329].
66 Before starting work Mr Norton had a cigarette on the lower floor. He took his cigarettes upstairs in his sports bag. He subsequently had a 2-3 more in the staff dining room upstairs after doing the round of the lower ground floor. He did not smoke anywhere else in the building[2330].
67 Miss Carlyle also had a cigarette downstairs in the designated smoking area before her shift began[2331]. During the shift she smoked in the smoking room off the Rose Lounge[2332]. Miss Carlyle did not smoke anywhere else, and she did not see Mr Norton smoking anywhere else either[2333].
68 At the time of the fire there were three residents of Rosepark who were known to smoke. They were Steven Fanning, Jim Daley[2334] and Tom Wallace[2335]. They all resided on the lower floor.
69 When the lower floor was evacuated after the fire alarm sounded all three of the known smokers were found, asleep, in their beds[2336].
70 Apart from Isabella MacLachlan none of the other known wanderers were up and about before the fire alarm sounded[2337].
Movements of Night Staff between Fire Alarm and Call to Fire Brigade
Brian Norton
71 Mr Norton assisted Mrs McAlinden from the toilet. As he emerged into the foyer Isobel Queen was at the fire panel[2338].
72 Mr Norton recalled Ms Queen as saying that the panel was indicating that the fire was in the area where they were[2339].
73 Mr Norton settled Mrs McAlinden in a chair in the Rose Lounge and checked the kitchen area, the smoking room, the dining room (where Bob Innes was), and the conservatory. He found no signs of any fire or smoke[2340].
74 Having checked those areas Mr Norton saw that the three female members of staff were "back up stairs". Mr Norton thought that his colleagues had checked the Matron's office and surrounding area and gone downstairs. He saw that a resident in a wheelchair (Nana Murphy) had been brought upstairs[2341].
75 Mr Norton thought that, at this point, Ms Queen, who had returned to the panel, had said that there was no fire and it must be a false alarm[2342].
76 Ms Queen asked Mr Norton what she should do. He replied by asking her what she would normally do in this situation. Ms Queen replied by saying that she would reset the fire alarm. Mr Norton thought that she tried to reset the fire alarm. The fire panel seemed to light up (like a Christmas Tree, as Mr Norton described it)[2343]. Mr Norton accepted as a possibility that only two lights illuminated after the panel was reset[2344]
77 When the alarm sounded for a second time Brian Norton sought to take control of the situation[2345]. He was concerned that something was not right. He decided to go along the upper corridor and investigate what was there[2346].
78 Mr Norton headed along the upper floor to the area of the lift. The fire two fire doors before the lift were closed. Mr Norton thought that the other members of staff followed him. When he reached corridor 2 Mr Norton observed a large amount of black smoke billowing out from the area of a store cupboard beyond the lift on his right hand side. The smoke appeared to be coming from the ceiling and descended about one third of the corridor 2 space. It was filling the space very rapidly and seemed to emanate from the vent shown in photograph 332B[2347].
79 Mr Norton thought that the fire was where the lift was. He shouted over his shoulder that there was a big fire and that the Fire Brigade should be called[2348].
80 He decided to go downstairs, along the lower level corridor and up the far stairs to render assistance to the residents beyond the smoke in the upper level corridors before they were trapped. He grabbed Miss Carlyle and, together, they set off down the stairs[2349].
Yvonne Carlyle
81 Miss Carlyle was the first to arrive at the fire panel. She saw a flashing light on the panel[2350]. She did not examine it; that was a matter for the nurse in charge[2351].
82 Isobel Queen and Irene Richmond arrived at the panel. Ms Queen said that the panel was showing a zone. Miss Carlyle reported to the police that Ms Queen had mentioned zone number 3 and that zone 3 was down the stairs. Ms Queen had also said that the panel was different to the one in place when the alarm had sounded before Christmas and that she did not know how to use it[2352]. Miss Carlyle recalled Ms Queen to say that they had to check down the stairs because it was showing up down the stairs[2353].
83 Miss Carlyle, Isobel Queen and Irene Richmond went along the corridor and down the stairs by the lift to the lower level[2354].
84 Between them they checked all of the corridors and rooms on the lower level, including the laundry and staff room. They found nothing out of the ordinary. Miss Carlyle and Mrs Richmond then went to Nana Murphy (who was still on a commode in room 27[2355]), placed her in a reclining chair and brought her by the lift to the Rose Lounge. The corridor fire doors were closed. Miss Carlyle noticed nothing unusual when they came out of the lift[2356].
85 After taking Nana Murphy to the Rose Lounge Miss Carlyle returned to the fire panel with the other members of the night staff. The alarm was sounding continuously. Ms Queen tried to reset the alarm using a key. The alarm went off but sounded again after a few seconds[2357].
86 When the alarm sounded again Miss Carlyle and Miss Queen followed Brian Norton along the corridor in the direction of the lift[2358]. Mrs Richmond remained in the Rose Lounge[2359].
87 When they opened the door to corridor 2 they could see smoke. It was coming down from the ceiling next to the lift shaft. Miss Queen identified the smoke by reference to the metal arm of the door closer unit in the top right hand corner of photograph 332B[2360]. The smoke was thick and very black[2361]. Mr Norton told Ms Queen to call the Fire Brigade[2362].
88 At this point Mr Norton told Miss Carlyle to go with him down to the lower level. If they had stood upright in corridor 2, where the smoke was congregating, their heads would have been in the smoke[2363].
Irene Richmond
89 When the alarm sounded Ms Queen and Irene Richmond were sitting outside Nana Murphy's room. They had just put Nana Murphy on a commode[2364].
90 They went upstairs to the fire alarm panel in the foyer via the stairs at the lift[2365]. Ms Queen did not recognize the panel[2366]. It was not the same panel as had been in use at the time when the fire alarm sounded in December 2003.
91 Ms Queen tried to identify which zone was indicated. She accepted as accurate her statement to the police on 31st January 2004 that zone 3 was showing on the panel[2367]. According to Mrs Richmond (by reference to her police statement dated 31st January 2004) Miss Queen said that the fire panel was indicating zone 3[2368] and that zone 3 was up to the lift[2369].
92 Mrs Richmond did not have a clear understanding of the whereabouts of zone 3. She related it to the first section of the upper floor near to the lift[2370].
93 She and Miss Queen left the foyer area and headed to the lift. They checked the area of, but not beyond, the lift. They saw nothing, and decided to check downstairs[2371].
94 Mrs Richmond and Miss Queen went downstairs. They went to check Mr Fanning's room. He was a smoker who they thought might have cigarettes in his possession[2372]. Miss Carlyle was probably with them by this point[2373]. The lower floor corridor, smoking room, staffroom and the laundry room were all checked[2374].
95 Nana Murphy was still on the commode. Miss Queen suggested that she should be taken off the commode and taken upstairs. Mrs Richmond and Miss Carlyle put her in a wheelchair and brought her back up in the lift and taken to the Rose Lounge[2375].
96 The alarm was still sounding. Mrs Richmond's recollection of what followed was hazy. However, she did recall attending those residents who were already in the Rose Lounge. She thought that Mr Norton and Miss Queen approached the fire alarm panel again. In an undated statement to the police taken shortly after the fire Mrs Richmond said that she thought Miss Queen had said that the panel was showing zone 2 and that zone 2 covered the area beyond zone 3 on the upper level She also recalled that the alarm was silenced before going off again and that the other members of staff went to investigate zone 2 while she remained in the sitting room with Mrs McAlinden[2376].
97 Mrs Richmond remained in the Rose Lounge until Miss Queen returned a few minutes later. Miss Queen told her that they had found smoke and that she had called the Fire Brigade[2377]
98 Mrs Richmond and Miss Queen then evacuated the residents in corridor 1 (rooms 1, 2, 3, 21 and 22) and took them to the Rose Lounge[2378]. Having done so they opened the door to corridor 2[2379] but could go no further because of the smoke[2380]. They returned to the foyer and Miss Queen made phone calls (she thought) to Mr Balmer and the Matron[2381].
Isobel Queen
99 The fire alarm went off after Miss Queen and Mrs Richmond had put Nana Murphy on the commode[2382].
100 Miss Queen ran upstairs, with Mrs Richmond behind her, and went to the fire panel[2383].
101 When she arrived at the fire panel, Miss Queen noticed that it had been changed. She was unfamiliar with the panel and the zones[2384]. She recalled panicking because the zone descriptions were not positioned where they had been on the previous panel but were down below[2385]
102 Miss Queen accepted as truthful her account to the police, recorded in her statement bearing the erroneous date 2nd January 2004, that when she looked at the panel three red dots were flashing above zone 3[2386]. In her statement to the police on the morning of the fire Miss Queen also stated that the fire panel had indicated zone 3 (although Miss Queen had no recollection of providing the recorded information that zone 3 was from the front door to the lift[2387]).
103 Miss Queen thought that Miss Carlyle, Mrs Richmond and she had then checked the rooms along the upper floor from the fire panel to the lift[2388]. Aided by the police statement dated 2nd January 2004 she recalled running into corridor 1 and checking rooms 1, 2 and 22 because their doors were open[2389]. She found nothing untoward there[2390]. It is unclear from her evidence to the Inquiry what location Miss Queen thought the panel had indicated. Matters are complicated by the evidence of Miss Carlyle. Miss Carlyle thought that Miss Queen had indicated downstairs[2391]. It seems to have lodged in Station Officer Campbell's mind that the staff had seen smoke coming from the lift at the lower level[2392]. A newspaper article reported Miss Queen as having said that the alarm panel indicated that the fire was downstairs[2393]. Conversely Mr Norton did not recall Miss Queen indicating that the fire was at the lower level[2394]. Mrs Richmond thought that Miss Queen had said zone 3 was up to the lift on the upper level. In that state of the evidence it is unsafe to reach any firm conclusions as to what she thought the position to be.
104 At all events, Miss Queen then ran to the lower level with Miss Carlyle and Mrs Richmond and checked on Stevie Fanning, one of the resident smokers[2395]. There were other smokers in Rosepark but Miss Queen thought that Mr Fanning was more likely to have a cigarette or lighter in his bedroom[2396]. Miss Queen went into Mr Fanning's room and switched on the light. Mr Fanning got a fright because he was asleep. Miss Queen then checked the laundry and found everything to be in order[2397].
105 Ms Queen returned to the fire panel via the stairs by the lift shaft. When she came back up the stairs Miss Queen noticed nothing unusual; in particular she noticed no smoke[2398].
106 Miss Queen's intention was to silence the alarm so as to stop disturbing the residents[2399]. She managed to silence the alarm but it immediately sounded again[2400].
107 Ms Queen accepted as truthful her statement to the police on 2nd January 2004 that the alarm went off again indicating zone 2, and that zone 2 was from the third fire door to the end of the corridor on the upper landing[2401]. This statement accords with Mrs Richmond's recollection of the position[2402] which suggests that it is accurate. Ms Queen described "panic" that the alarm had sounded again[2403].
108 At this point Mr Norton decided to go along the corridor to investigate. Miss Queen followed him along to the fire door before the lift. Mr Norton opened the door, said that there was smoke, and that she should call the Fire Brigade[2404]
109 Isobel Queen returned to Matron's office and called the Fire Brigade[2405]
The Fire Alarm Panel
110 The existence of a new panel, coupled with the old zone card, created the potential for confusion. In her evidence Ms Queen described how she recalled panicking because the zones were not set out where they had been with the previous panel[2406]. This was a matter that received consideration by Michael Gray, a specialist in ergonomics and human practice, in his reports comprising Crown productions 1140 and 1196. The former report considered the ergonomic characteristics of the fire alarm panel and the latter report compared it with a replica of the previous fire alarm panel at Rosepark[2407]. Mr Gray concluded that (i) the arrangement and layout of the fire panel at Rosepark on 31st January 2004 did not adequately support staff in identifying the correct zones, and (ii) having to deal with an unfamiliar panel in an emergency situation would increase the difficulty in using the panel properly[2408].
111 In the comparison between the two panels Mr Gray concluded that the previously installed panel would have allowed someone to locate the zone affected by fire more easily than the replacement panel[2409]. Critically, he offered the opinion that, even if the zone panel were the same as previously, it would be hard for the user to make any assumptions about whether the zones had changed because things like the old panel which make the zone card recognizable are no longer there[2410] On the night confusion and uncertainty there evidently was[2411].
CCTV Footage of Staff Movements before the Call to the Fire Brigade
112 The movements of staff at the time when the fire alarm sounded have already been noticed. That footage showed that Isobel Queen, Yvonne Carlyle and Irene Richmond all gathered at the panel. Ms Queen confirmed that this was the first time that she approached the panel[2412]. Hands can be seen around the panel, pointing at the panel and at something (almost certainly the zone card) below it[2413].
113 When the CCTV was paused at 0534:42 (0430:23) hours Yvonne Carlyle was able to identify Mrs Richmond and herself moving away from the fire panel. Miss Carlyle thought that they were going to check for fire down on the lower level[2414].
114 At 0535:09 (0430:50) hours Ms Queen identified herself walking away from the panel while speaking in the direction of an area to the left of camera where Brian Norton then was. She was seen to walk away in the same direction as Miss Carlyle and Mrs Richmond. She was leaving to check the rooms up to the lift shaft. Mr Norton confirmed that this was at a time when he had been checking the rooms around the foyer and his colleagues had gone downstairs[2415].
115 At 0538:30 hours Miss Queen is observed to return to the fire panel. Miss Queen had been to the lift shaft and downstairs to the laundry and smokeroom. She had then returned to the panel[2416].
116 At 0538:51 (0433:32) hours Yvonne Carlyle passed the camera pushing Nana Murphy in a wheelchair (described earlier in her evidence as a reclining chair)[2417]. Nana Murphy had been brought up in the lift from room 27. Nothing unusual had been noticed in corridor 2[2418].
117 When the CCTV was paused at 0539:52 (0435:33) hours Mr Norton, Miss Carlyle and Miss Queen all spoke to hand activity in way of the panel and immediately below it after the female members of staff had returned from the lower level. Miss Queen agreed that showed a period of considerable uncertainty[2419].
118 When the CCTV was paused at about 0540:07 (0435:48) hours, or within a few seconds of that time, all members of the night staff agreed that they had just seen Miss Queen's attempt to reset the fire alarm and the alarm immediately sounding again. Miss Carlyle agreed that she and Mrs Richmond appeared to jump. Mrs Richmond certainly agreed that she appeared startled because the alarm had sounded again[2420].
119 When the CCTV was paused at 0540:43 (0436:24) hours Miss Carlyle was visible in the vicinity of the fire panel. She agreed that she was looking perplexed[2421]. There ensues a sequence of footage until 0540:58 (0436:39) hours when various staff members are seen coming and going in the vicinity of the fire panel[2422].
120 When the CCTV footage was paused at 0540:58 (0436:37) a significant development is identified. Mr Norton confirmed that he had been seen heading away from the foyer to where the lift was[2423]. Irene Richmond identified Mr Norton, Miss Carlyle and Miss Queen leaving the panel[2424]. Miss Queen observed that she had been seen looking at the fire panel, and had then headed off with Mr Norton and Miss Carlyle[2425]. It is apparent from what followed that this was the time when Mr Norton, followed by Miss Carlyle and Miss Queen, headed to corridor 2 and discovered thick, black smoke.
121 When the CCTV was paused at 0542:47 (0438:28) hours Irene Richmond was able to identify what had just occurred. Isobel Queen had just moved past the camera from right to left. Mrs Richmond thought that Miss Queen was heading to the Rose Lounge at this point to tell her that she had called the Fire Brigade[2426]
The Call to the Fire Brigade
122 The call to the Fire Control Centre at Johnstone, handled by Joyce Wood, was received at 0437:32 hours[2427].
123 Label 53 is a recording of the call to the Fire Control Centre. Production 566 is a transcript of the call. While the call was made the fire alarm at Rosepark Care Home was audible to the control operator in the background[2428].
124 Ms Queen knew that the bottom gate at New Edinburgh Road was locked. She therefore told the Fire Brigade, mistakenly, to enter via Rosepark Gardens. She should have mentioned Rosepark Avenue[2429]. As matters subsequently transpired it is unlikely that the Fire Brigade Incident Commander paid any heed to the injunction to attend an address other than New Edinburgh Road. But the failure to state the correct address was a significant one which may not have had the intended result (namely to direct first attendance at Rosepark Avenue) even if there had been any attempt by Fire Service personnel to act upon the additional information thus imparted.
125 Ms Queen also mentioned the lift to the call operator because at that time that was where she thought the fire was[2430].
The Actions of Ms Queen and Ms Richmond after the call to the Fire Brigade
126 Having made the call Ms Queen and Mrs Richmond's movements can be traced throught the CCTV footage.
127 When the CCTV was paused at 0543:18 (0438:59) hours Miss Queen had been seen to go to the door entry control pad and opening the main door for the Fire Brigade[2431].
128 When the CCTV was paused at 0544:50 (0440:31) hours Miss Queen had been seen to move across the screen from left to right at speed. Miss Queen related this to the process of evacuation to the Rose Lounge of the residents of rooms 1, 2, 3, 22 and 23[2432].
129 When the CCTV was paused at 0545:29 (0441:10) hours both Miss Queen were seen to have headed towards the Rose Lounge each assisting an elderly lady.
130 Miss Queen and Mrs Richmond took the residents whom they were able to evacuate to the Rose Lounge[2433]. They then returned to the second fire door (ie. fire door between corridors 1 and 2) with Mrs Richmond. They did so with the intention of going beyond it. There was thick black smoke beyond the door. They covered their mouths with incontinence pads (their hands, according to Mrs Richmond[2434]) but were forced back by the smoke. They shouted on Mr Norton and Miss Carlyle but received no response[2435].
131 Ms Queen then telephoned Thomas Balmer. He told her to telephone Joe Clark (which she did). Ms Queen was unable to raise Sadie Meaney[2436].
132 When the CCTV footage was paused at 0548:45 (0444:26) Firefighter David Buick had been seen to enter Rosepark[2437]
The Actions of Mr Norton and Ms Carlyle after the call to the Fire Brigade
133 Brian Norton and Yvonne Carlyle descended to the lower ground floor. It was Mr Norton's decision to do so[2438]. They ran along the lower ground floor corridor, intending to go up the back stairs[2439]. There was no smoke in this corridor, and the lights were on[2440]. They reached the far end of the lower ground floor corridor. Mr Norton opened the fire door and started to climb the stairs. He was horrified to discover acrid, thick, black smoke filling half of the stairwell[2441].
134 Mr Norton got about three quarters of the way up the stairs, perhaps slightly farther[2442]. Miss Carlyle appears to have followed him some distance up the stairs[2443]. Both Mr Norton and Miss Carlyle and he could hear crackling sound coming from the other side of the fire door at the top of the stairs (the far end of corridor 4b)[2444]. Mr Norton realised that this was where the fire was. He knew that they could not go any further[2445].
135 To Mr Norton the sound of crackling sounded like wood burning[2446]. Having regard to Mr Norton's description of running down the stairs and along the lower ground floor corridor, the fact that Mr Norton could hear what he thought was wood burning in corridor 4b is consistent with the presence of a fire in that area sufficient to melt the hands of the clock in room 12 - a room with an open door - and bring it to a stop at about 0440 hours.
136 Mr Norton decided to evacuate the lower ground floor residents. He was concerned that if they did not organize an evacuation of the residents they might become trapped between two lots of smoke at either end of the corridor[2447].
137 Mr Norton and Miss Carlyle woke all of the residents on the lower ground floor in order to evacuate them. The few residents who were able to get up on their own did so. Those who could not were manoeuvred into wheelchairs and wrapped in quilts. The residents were moved to the corridor. While doing so he noticed smoke seeping through the fire door from the stairwell that he and Miss Carlyle had just tried to ascend[2448]. When Mr Norton and Miss Carlyle began evacuating them, all of the residents had been in their rooms[2449].
138 There were three smokers resident in Rosepark at the time of the fire. They were Tom Wallace, Stevie Fanning and Jim Daly. All three residents had bedrooms on the lower ground floor[2450]. When Mr Norton and Miss Carlyle went to the assistance of the lower ground floor residents they found the three resident smokers in their beds, asleep. Although Mr Fanning could wander a bit he was asleep that night[2451].
139 Mr Norton checked all of the rooms on the lower ground floor to make sure that no one was left in their room. The last room to be checked was room 23. After checking this room Mr Norton noticed a blue flashing light outside[2452].
140 Mr Norton decided to attempt an evacuation via the fire exit at the lift shaft end of the corridor. He thought that this route afforded the best chance of success. It would be taking people away from where the fire appeared to be. If they could not get through M Norton contemplated breaking a window[2453].
141 Mr Norton approached the fire door on the lower level nearest the lift. Just before he reached the door two firemen (BA team 1 from the Bellshill fire appliance) wearing breathing apparatus came through the door. One of the firefighters remained with Mr Norton, Miss Carlyle and the residents. The other firefighter went to open the fire exit. The residents were then evacuated through the fire exit door[2454].
142 In the result, thanks in large measure to the efforts of Mr Norton and Miss Carlyle, all of the residents from the lower level were successfully evacuated. Their actions, in dangerous and frightening conditions, ought to excite the highest admiration.
Mobilization, arrival and deployment of the Fire Brigade
Summary of Attending Appliances
143 A total of six appliances were mobilised to the incident at Rosepark on 31st January 2004. The following is a summary of the movements of those appliances as disclosed in the Incident Resource History[2455]:
EO31 - Bellshill Appliance - Pre-determined attendance
Mobilised: 0438:46 hours
Mobile Time: 0440:33 hours
Attend Time: 0442:12
EO12 - Hamilton Second Appliance - Pre-determined attendance
Mobilised: 0438:46 hours
Mobile Time: 0442:03 hours
Attend time: 0447:06 hours
E011 - Hamilton First Appliance - Make Pumps 3 response
Mobilised: 0456:32 hours
Mobile Time: 0458:57 hours
Attendance Time: 0552:42 hours (erroneous - probably c.0505 hours)
E042 - Coatbridge Second Appliance - Make Pumps 4 response
Mobilised: 0506:09 hours
Mobile Time: 0509:43 hours
Attend Time: 0525:32 hours
E022 - Motherwell Second Appliance - Make Pumps 6 response
Mobilised: 0526:01 hours
Mobile Time: 0528:18 hours
Attend Time: 0537:14 hours
E041 - Coatbridge First Appliance - Make Pumps 6 response
Mobilised: 0526:01 hours
Mobile Time: 0528:23 hours
Attend Time: 0537 hours
Fire Brigade Attendance and Deployment
144 The fire at Rosepark Care Home fell within the area of operation of Bellshill Fire Station[2456]. One fire appliance was stationed there[2457]. The callsign for the Bellshill appliance was EO31[2458].
145 On the night of the incident Bellshill Fire Station was being manned by Blue Watch[2459]. Blue watch comprised Station Officer Steven Campbell, Sub-Officer James Clark, Firefighter David Buick, Firefighter Colin Mackie, and Firefighter Paul Caldwell. Mr Caldwell was the driver of the appliance[2460].
146 With the exception of Mr Clark, none of the members of Blue Watch had previously visited Rosepark[2461]. Mr Clark's recollection of his visit, perhaps two or three years before the fire was vague. He could not recall which entrance he went to, and did not think that he would have remembered if the entrance had been at Rosepark Avenue[2462]
147 Two appliances were mobilized to the incident. They were the Bellshill appliance and the second appliance from Hamilton Fire Station (callsign E012). The time of mobilization of EO31 and E012 is recorded as 0438:46 hours, and EO31 was mobile to the incident (in the sense of being underway) at 0440:33 hours[2463].
148 A two appliance mobilization was normal for an incident of the type described in the turn-out slip[2464].
149 E031 was mobile to the incident at 0440:33 hours. There was a degree of delay in the mobilization of E012 which was mobile to the incident at 0442:03 hours[2465]. This delay triggered a transmission from the control room operator[2466]. While the cause of the delay may be ascribed to dressing and donning BA equipment speed the objective, especially as part of first attendance, must be to mobilise as quickly as possible[2467].
150 Station Officer Steven Campbell was the officer in charge of Bellshill Fire Station on the night of the fire and assumed command responsibility for the incident. He obtained the turn-out slip from the "fire cat" in Bellshill Fire Station. The time of 0438:27 hours on the slip is the time when it would have printed out in the station[2468].
151 The turn-out slip imparted important information. In particular, it gave an address for Rosepark Care Home of New Edinburgh Road. It also supplied additional information which Fire Brigade Command and Control considered that the crew of the attending appliances would need to know[2469]. The additional information included an injunction to "enter via Rosepark Gardens." It is probable that Station Officer Campbell did not notice this particular information on the turn-out slip[2470]. If he did, it was information that was not communicated to the other members of the crew of the Bellshill appliance. None of the other members of that crew recall, or speak to, any mention of Rosepark Gardens on the journey to Rosepark[2471]. In relation to the responses of SF&R: a. It is not clear why a short journey time should be relevant to whether the additional information was looked at or not; b. The additional information was concerned with the means of access to Rosepark, not its general whereabouts, and c. The possibility of further confusion and delay illustrates the importance of familiarisation with premises of particular risk, such as Rosepark[2472].
152 The combination of the inclusion on the turn-out slip of the erroneous address, supplied by Miss Queen, and the failure by Mr Campbell to notice that address in the additional information, had important consequences for the search and rescue operations subsequently conducted by the firefighters of Strathclyde Fire and Rescue. In relation to the responses of SF&R the following points are made: (1) It is of immediate significance that, when he entered Rosepark, Mr Campbell had at his disposal no BA wearers for any kind of operations, whether they be rescue, reconnaissance or otherwise[2473]; (2) It is unclear from his evidence what (if anything) Mr Campbell gleaned from his walk (or jog) up the side of the building about the internal layout of Rosepark; (3) It is not accepted that there was no question of delay while Mr Campbell was waiting for the arrival of the first attendance appliances at Rosepark Avenue. No significant delay need have occurred in briefing BA crews. The vital information which Mr Campbell required to obtain and assimilate ought to have been obtained in no more than a minute[2474]; (4) It is not disputed that strict BA procedures were not adhered to. No criticism of any decisions of individual officers is intended in that respect; (5) The submission that, if the gates in the lane had been left unlocked, it would have made no difference in terms of time is questionable in that it ignores Firefighter Caldwell' uncertainty about whether he could have driven to the far end of the building via the lane[2475].
153 The information on the turn-out slip appears not to have been noticed, or at least acted upon, by Leading Fire Fighter Archibald MacDiarmid, the officer in charge of E012. His only coherent explanation for E012 attending at the New Edinburgh Road entrance to the Home was that he did not read the relevant part of the turn-out slip until his appliance was on New Edinburgh Road. The lights of E031 were visible on that street so that is where they went[2476].
154 In the result E031 first attended at the New Edinburgh Road entrance to Rosepark Care Home. Its attendance time was recorded as being 0442:12 hours[2477]. The VMDS system onboard E031 was not functioning[2478]. Mr Campbell did not consult the section 1(1)(d) information onboard the appliance[2479]. However, the information in the section 1(1)(d) records about access did not point conclusively to Rosepark Avenue as the correct means of access[2480]
155 On arrival Station Officer Campbell and Firefighter David Buick disembarked. There were two sets of gates in the driveway both of which were locked[2481]. Station Officer Campbell and Firefighter Buick climbed over both sets of gates and headed up the driveway visible in photograph 887A. As they did so Sub-Officer James Clark and Firefighter Colin Mackie used bolt cutters to unlock the bottom set of gates[2482] and the driver of E031, Firefighter Paul Caldwell, drove the appliance into the driveway. On looking up the driveway Mr Caldwell noted that there was an overhang at the top end of the building and he was uncertain if there would be room to turn at the top because of the equipment on the top of the appliance itself[2483].
156 While E031 was positioned at the bottom of the driveway E012, the Hamilton second appliance, arrived on New Edinburgh Road[2484] It logged attendance at 0447:06 hours[2485].
157 From the drive Firefighter Buick was able to observe smoke coming from the along the eaves of the building to the right hand side of photograph 887E (in the area of the gable above the broken window in that photograph)[2486]. Colin Mackie saw smoke issuing from the eaves in the vicinity of the third window from the left hand side on the New Edinburgh Road end of the building, or possibly further to the right at that end[2487]. Station Officer Campbell spoke only to observing smoke from the drive just prior to reaching the second set of gates. On his left Station Officer Campbell observed a window and saw what he perceived to be a laundry or utility room. He saw light coloured wispy smoke at ceiling level[2488]. He did not look in the direction of the eaves[2489]. It is unclear what significance should be attached to the point made by SF&R that "the evidence suggests that smoke issuing from the eaves is not inconsistent with the presence of smoke in the lift shaft". There is no evidence that any fire officer considered whether there were any implications for firefighting operations from the issuing of smoke at a point firth of the location of the lift.
158 Firefighter Buick was the first fire officer to enter Rosepark Care Home and he entered alone[2490]. Standing Isobel Queen's apparent position that she could not remember anything about the conversations she had with the first attending fire officers[2491] the most reliable account of what followed is to be derived, largely, from the testimony of Firefighter Buick (whose evidence, by contrast, was impressive in terms of both its detail and its clarity).
159 When he entered the home Mr Buick saw a nurse facing him about 15 - 20 feet along the corridor[2492]. Photograph 870 H1 shows the area where Mr Buick met the nurse, who had short brown hair and was wearing glasses. She was the only member of the nursing staff in the foyer at that time. She pointed over to her right and said "she is on the phone". She was indicating to the nurse in charge. Mr Buick saw another nurse on the phone. She was in the office shown in photograph 870 H1[2493]. It is clear (not least from the reference to the nurse in the foyer wearing glasses) that Mr Buick was directed by Irene Richmond to Isobel Queen.
160 Mr Buick spoke to the nurse in the office after she finished her telephone call. He formed the impression that she was in charge. She did not immediately break off her telephone discussion to speak to Mr Buick. The nurse approached Mr Buick and apologised for getting them (the fire brigade) out, and indicated that the smoke was down to her left (in the opposite direction to the main office). She said that the smoke was in the lift[2494]. Mr Buick did not recall her referring to fire, just to smoke. The nurse who had been on the telephone (Miss Queen) had seemed calm and not overly concerned[2495]. Mr Buick was referred to production 1744. He thought that the nurse had been in the first office, but he was not certain[2496].
161 Mrs Richmond thought that she would have told the fire officers, when they first arrived, that the smoke was coming from the area of the lift[2497].
162 Mr Buick was referred to photograph 290 (b)[2498]. He confirmed that this was a shot of a corridor within Rosepark, looking towards the foyer area. He was taken by Miss Queen along this corridor (corridor 1) to the door just before the lift. Photograph 290 (a) is the same corridor, taken from the opposite direction. Mr Buick confirmed that there was a fire door at the end of this corridor which was closed[2499]. It is open in photograph 290 (a). Before opening the closed fire door, Mr Buick had not detected any evidence of fire. There was no smell or sign of smoke[2500].
163 Under reference to photograph 332B, Mr Buick confirmed that the lift was to the right hand side of this photograph. This part of the corridor was heavily smoked logged[2501]. There was a significant change in conditions when he opened the door to corridor 2[2502]. Visibility was between 1.5 - 2 feet at face height, down to at least waist height[2503]. He could not tell where the smoke was coming from. He could not see the door on the other side of corridor 2 when he opened the fire door on the opposite side. He did not see any flames at this point[2504].
164 Miss Queen was present with him when he opened the door to the lift area. He asked her if there was anyone within this area, and she answered that the residents were in their rooms, and that there were two members of staff at the other end of the corridor[2505].
165 At that time Mr Buick did not know where the rooms she was describing were. He did not know the layout of the building. He thought there would be more fire doors along the corridor. If the fire was in the lift area, he would have expected the corridor beyond the lift to be relatively free of smoke. Lift fires are relatively common. They can be caused by the lift mechanism, rubbish in the lift, or the light fittings in the lift. No indication was given by the nurse as to where those rooms were. Mr Buick was referred to a statement which he gave to the police on 3 February 2004. He remembered giving a statement to the police at that time. He had told the truth and given them information to the best of his recollection at the time. He was referred to page 6 of his statement. He was recorded as having said that the nurse had pointed to the right and said that was where the lift was, and that he could see the lift. At the time of his evidence Mr Buick did not remember having seen the lift. He agreed that this recollection would have been better at the time of giving the statement[2506]. Sir Graham's comments about lift fires burning themselves out were made in the context of describing the unliklihood of the fire at Rosepark being such a fire[2507]. Nor, to be fair, is there any evidence that Station Officer Campbell made his dispositions on the basis that the fire was likely to have burnt itself out.
166 He had told police that he could not see any fire or fire damage, just smoke. The nurse had told him that the residents were in their rooms, and had indicated beyond the next set of doors. Mr Buick agreed that this would be what he had told police and that this would have been true.
167 Mr Buick was concerned for residents in their rooms and the staff members who were said to be at the other end of the corridor. He made his way back to the main entrance of Rosepark where he met Station Officer Campbell outside the front door[2508]. Mr Buick told Station Officer Campbell what he had found, that the nurse had told him that the residents were still in their rooms, and that the nurse had thought the smoke was coming from the lift. He took Station Officer Campbell to show him what he had seen[2509]. Mr Campbell can be observed on the CCTV footage entering the foyer at 0549:55 (0445:36) hours along with Mr Buick[2510].
168 Ms Queen and Mrs Richmond were in the reception area when Mr Campbell entered. There were residents in the Rose Lounge[2511]. Mr Campbell was given no indication as to who was in charge so he spoke to both staff members. He did not ask if anyone was in charge[2512].
169 On entering the foyer Mr Campbell asked the two members of staff if everyone was accounted for. He was told that they were not, but that the residents were still in their rooms (excepting those already evacuated from corridor 1)[2513]. Mr Campbell was shown the position of the fire alarm control panel[2514]. He was told by the staff that the panel had indicated a particular zone. At the time of giving his evidence Mr Campbell could not recall that zone number which he was given. It could have been zone 3[2515].
170 As regards information given by staff about the location of the fire Mr Campbell's initial position was that he was given definite information as to the location of the fire at the point when he was first shown to the alarm panel. He said that he had no reason to doubt that what the staff were telling him was accurate[2516]. He is recorded as having told the police that he was informed that the fire was in the lift shaft[2517]. He was told of a zone number which had caused the staff to go to the lower ground floor where they had witnessed smoke coming from the lift area[2518]. Mr Campbell could not, however, recall if the staff had said that they had personally seen smoke at that level. They told him that smoke had been reported there[2519]. In fact, there is no independent evidence that Mr Campbell was ever given "definite information" about the location of the fire at all. By that is meant that there was no support from any other witness for Mr Campbell's evidence that he was given definite information as to the location of the fire[2520]. Ultimately Mr Campbell himself stated that he never received confirmation to his satisfaction that the fire was in the lift area[2521]
171 In the circumstances it is likely that Station Officer Campbell was told that zone 3 had shown up on the control panel. This is because (a) it was the only number identified as a possibility by Mr Campbell; (b) in her police statements of 31st January 2004 and 1st February 2004 (the accuracy of which she accepted) Ms Queen made mention of the light for zone 3 flashing[2522]; (c) Miss Carlyle reported Ms Queen as having said, when she arrived initially at the fire panel, "it's coming up zone 3"[2523]; (d) by reference to her police statement of 31st January 2004, Mrs Richmond accepted that she had said that zone 3 was indicated on the panel[2524] and (e) the detector in cupboard A2 was in fact wired to zone 3[2525] so that illumination of the zone 3 light correctly identified the location of the fire, and would be consistent with mention of zone 3 to Mr Campbell. If he had examined the zone card (production 180) at the time when mention was made of zone 3 Mr Campbell's own evidence was that he would have understood that the panel was indicating an area on the ground floor and not the lower ground floor. At that point he had a good understanding of the layout of the ground floor[2526]. However, his position was that since the staff had given him definite information as to the location of the fire he did not check the fire alarm panel[2527]. With reference to the responses of SF&R, marked a.-d., the following observations are made. a. It is questionable whether, on the evidence to which reference has already been made, this proposition can be stated with clarity at all; b. This proposition is probably correct; c. It is probably correct that Mr Campbell had to rely on Ms Queen for information as to which zone had illuminated first. However, there would be little point in obtaining that particular information unless the reasonable precaution was taken to verify against the zone card the whereabouts of the zone which thus illuminated; d. The proposition in the first sentence is at odds with the evidence of Sir Graham Meldrum[2528]. The proposition in the second sentence is at odds with Station Officer Campbell's own evidence that he would have understood from the information in the zone card that the panel had indicated an area on the upper floor rather than the lower floor[2529]. (It is submitted that this is a point of relevance to the submissions made on behalf of SF&R on pages 5 and 6 of their final submissions (in response to the Crown adjustments). If Mr Campbell had examined the fire panel (as, contrary to his own evidence on the point, it is suggested in the submissions of SF&R he did) it does not explain why his concentration appears to have been on the lower level.
172 Mr Campbell and Mr Buick proceeded to corridor 2[2530]. Once there, Mr Campbell also found that there was heavy smoke logging in corridor 2 down to about one metre above ground level[2531]. By the time he observed smoke in the area of the lift Mr Campbell knew that there were bedrooms beyond corridor 2[2532]. Mr Campbell and Mr Buick then returned to the foyer. In evidence Mr Campbell said that, from what he had seen, he had no reason to believe that there was not a fire in the lift enclosure and that the fire and products of combustion were contained within that protected area[2533]
173 Mr Buick said to Station Officer Campbell that the incident should be made persons reported, and that he would put his breathing apparatus on[2534], although he had not been designated a BA wearer at the start of the shift. Mr Buick thought that he had been the first to mention persons reported, but that Station Officer Campbell agreed immediately. "Persons reported" means that there are people in the building who are unaccounted for. Mr Buick then returned to the appliance. Station Officer Campbell remained at the main entrance. Mr Buick thought that Station Officer Campbell was on the radio to the other appliance whilst he walked down the driveway. It is possible that an instruction to pass a "persons reported" message was made by Mr Campbell at around the time when the CCTV footage was paused at 0552:37 (0448:18) hours; if it was, that instruction was given after Mr Buick and Mr Campbell had visited corridor 2[2535].
Persons Reported
174 Mr Campbell's belief that there was a fire situation at the lower level was in fact erroneous. This ought to have been apparent if Mr Campbell had taken the reasonable precaution[2536] of checking the whereabouts of zone 3 against the zone card beside the fire panel[2537]. Had he called for additional appliances at this time they would, obviously, have been at the scene sooner than the additional appliances which responded to later resource messages[2538]. In relation to the numbered responses of SF&R the following observations are made. 1. It is again observed that zone 3 was wired correctly[2539]. The answer to the question why Mr Campbell should not have depended on Ms Queen for the information about the whereabouts of zone 3 was given by Sir Graham Meldrum. He emphasised that people in fire situations were under enormous pressure and that the information they gave had to be verified where possible[2540]. It is, of course, obvious that Mr Campbell would have had to rely on Ms Queen for information as to which zone originally illuminated. However, that would not be a reason to depend on whatever description she gave as to where the relevant zone was, when the means to verify that information were immediately at hand; 2. This proposition does not accord with Mr Campbell's own evidence[2541]; 3. When Mr Campbell questioned under reference to the zone card he did not appear to experience the sort of difficulties implicit in this submission[2542]; 4. It follows from the observations at 1. above that it is not accepted that implicit reliance should have been placed on Ms Queen. Verification is a means by which catastrophic errors are not perpetuated. In the context of verification of the whereabouts of zone 3 being considered a reasonable precaution[2543] it is instructive that Operational Technical Note A124 now provides that in all instances where fire is suspected or when responding to an alarm actuation the alarm panel must be consulted to establish the sones involved within the building[2544]
175 The "persons reported" message was actually logged at 0450 hours[2545]. The message was communicated to the Control Room by the Hamilton appliance, E012, after Mr Buick had returned to the New Edinburgh Road entrance and informed Sub-Officer James Clark that it was a persons reported incident[2546]. By that time Mr Campbell was aware of the following matters:
· There had been a report of smoke in the building.
· Staff members had gone downstairs and detected smoke coming from the lift area.
· Two staff members had headed to the lower level in order to carry out an evacuation, be it full or phased.
· Nothing had since been heard from these staff members at that point. There were no radios or other means of communicating with them.
· The residents on the upper floor beyond the lift had not been evacuated.
· An effort had been made to enter the upper floor beyond the lift but staff had been unable to do so because of the smoke.
· Mr Campbell knew how many residents resided on the lower level although he could not remember the number at the time of giving his evidence.
· Mr Campbell was aware that there were residents beyond an area of the building that was smoke logged[2547].
With reference to the submissions of SF&R it is accepted that the compartmentation may have appeared effective to the extent of excluding any significant smoke ingress into corridor 1. However, it is going too far to suggest that Mr Campbell had no reason to believe that the compartmentation would not be effective in any other area. On the contrary, it was not appropriate to make any assumptions about the fire integrity of the building, and in particular the absence of smoke spread beyond corridor 2, when the seat of the fire was not known[2548]
176 According to Mr Campbell, the staff and residents on the lower ground floor were his priority at that time. It was because of their status that he instructed a "persons reported" message. The effect of transmitting a persons reported message was to mobilise the resources of the Scottish Ambulance Service. The first ambulance was allocated the call to Rosepark at 0450 hours. The first ambulance arrived at Rosepark at 0457 hours. The crew requested further assistance and two further ambulances arrived at 0503 and 0505 hours respectively[2549]
177 When Station Officer Campbell instructed the transmission of a persons reported message he did not, at the same time, seek additional resources in the form of further fire appliances and crews. It would, he said, have been a knee jerk reaction to have done so[2550] and Mr Campbell did not agree that he should have done so[2551].
178 Instead Mr Campbell proceeded to formulate an operational plan on the basis that the information he was given led him to believe that there was a fire situation at the lower level. He was satisfied that the smoke was contained in the lift enclosure and had, he suggested, no reason to think otherwise. Corridor 1 was virtually smoke free and Mr Campbell said that he had no reason to think that conditions on the far side of the lift enclosure were any different[2552].
179 Crucially, however, Mr Campbell rejected the proposition that he could not, at that time, be satisfied as to the safety of the residents beyond corridor 2[2553]. He was satisfied that the two initial appliances, with four designated BA wearers and two additional BA sets each, were sufficient[2554].
180 At the time when he instructed the "persons reported" message to be transmitted Mr Campbell had not asked whether the bedroom doors on the ground floor beyond corridor 2 were shut at night[2555]. It was not a question that he asked at the time and not one that he had ever asked before[2556]. He had, however, been told by that time that the residents on the upper level would require a greater level of assistance than the ones at the lower level[2557].
181 Even had he known that some bedroom doors were not shut at night, this would not have affected Mr Campbell's decision not to seek additional resources[2558].
182 Had Mr Campbell known, at 0450 hours, that the corridor beyond the lift enclosure was heavily smoke logged, he would have been aware that the residents in that area were in grave danger[2559].
Re-positioning of appliances
183 Mr Buick told Mr Clark that they should move E031 to the Rosepark Avenue entrance[2560]. Both appliances then proceeded to the Rosepark Avenue entrance to the Home. The lights of E031 are visible at the Rosepark Avenue entrance to the Home on the CCTV footage at 0553:56 (0449:37) hours[2561] (as against a logged arrival time at New Edinburgh Road of 0442:12 hours - a difference of 7 minutes and 25 seconds).
184 On arrival, Mr Clark and Mr Mackie disembarked and entered the Home[2562]. Both identified themselves from the CCTV footage as entering the Home at 0554:24 (0450:05) hours. They were briefed by Mr Campbell, instructed to proceed to the lower ground floor, where there were fourteen residents and two members of staff unaccounted for, and conduct a search and rescue[2563]. The working hypothesis at the time was that there was a fire or smoke in the lift[2564].
Search and Rescue Operations by BA Team 1 (Clark and Mackie)
185 On the CCTV footage, at 0555:04-10 (0450:51) hours, one or other of Mr Clark or Mr Mackie can be seen donning a face mask before both move off towards corridor 2 to commence the search[2565]. The timing of that sequence of footage is consistent with Mr Clark having commenced breathing through his BA set at 0451:09 hours[2566].
186 BA team 1 found corridor 1 to be affected by smoke. Visibility was about 6-10 feet[2567]. In corridor 2 visibility was reduced to about 6 inches because of smoke[2568]. They did not go through the door to corridor 3. Mr Clark was aware that he and Mr Mackie were the first firefighters into the building and that nobody else had gone through the fire door between corridors 3 and 4[2569].
187 BA team 1 descended the stairwell from corridor 2 and found that about 50-75% of the way down the smoke was significantly reduced[2570]. In the lower ground floor corridor the visibility was clear[2571]. BA team 1 turned right and headed through the first fire door. They checked bedrooms 23, 24, 34, 35 and 36. They checked the WC and store. They found no-one[2572]. Mr Clark and Mr Mackie then proceeded through the fire door visible in photograph 886A. Visibility on the other side was as clear as day[2573].
188 As soon as they came through the door Mr Clark observed a male member of staff, Mr Norton, and a resident in the vicinity of the door to room 25[2574]. They both took off their masks so as not to give anyone a fright (and there was, in any event, no reason to keep them on in the conditions which prevailed in the corridor)[2575]. The second member of staff and other residents, either in wheelchairs or standing, were found outside rooms 25, 26, and 27. Mr Clark asked Mr Norton to confirm that all the residents were gathered in the area of the dog leg. Mr Norton confirmed that they were all there. Mr Clark counted 14 people (possibly 16 according to his recollection); he therefore accounted for everybody[2576].
189 Mr Clark sent a radio message to Mr Campbell informing him that he had located the sixteen people who had been unaccounted for, and that he was going to evacuate them. Mr Campbell acknowledged the message[2577].
190 BA team 1 then proceeded to the fire exit at the far end of the building (outside room 30). As soon as they opened the door at the end of the corridor Mr Clark and Mr Mackie found the stairwell to be smoke logged. The smoke was thick and black. They were surprised to find smoke in an area which was expected to be fully protected against smoke and fire[2578].
191 Mr Clark asked Mr Mackie to go back to the stairwell at the lift shaft to make sure there was no smoke there, so that they could evacuate the residents out of the fire exit at that stairwell. Mr Mackie did this. The residents and staff members were evacuated out through the fire exit at the lift shaft and out into the communal garden[2579]. Mr Campbell spoke to the staff and was told that there was a path round the (west) side of the building and through the garden to the main entrance[2580]. The residents of the lower level were evacuated by this route once the lock to the top gate had been broken by Firefighter Colin Gray of E011[2581]
192 Once all of the residents had been evacuated BA team 1 returned to the far end of the corridor. Mr Clark radioed Mr Campbell to indicate that they would proceed upstairs to the ground floor, entering from the far end of corridor 4b, and undertake search and rescue. The message was acknowledged and Mr Campbell instructed them to carry on[2582]. BA team 1 resumed breathing apparatus and entered the stairwell beyond the fire door at the end of the lower ground floor corridor[2583].
193 It is possible to place a time on the sequence of events just described by reference to the Datalog Report for BA set 344 worn by Mr Clark. The report shows that at 0453:09 hours the breath rate reduces to "0" having commenced at 0451:09 hours. Mr Clark agreed that this would be consistent with the length of time in which he was initially using air from a BA set before he took off his mask in the lower ground floor. The breath rate continues to be recorded at "0" until 0504:57 hours[2584]. At that point the breath rate column contains readings consistent with the resumption of breathing through BA set 344. The period between 0453:09 and 0504:57, approximately 12 minutes, was consistent with Mr Clark's recollection of how long it took to evacuate the residents of the lower ground floor[2585].
194 Accordingly, it is reasonable to time the entry of Mr Clark and Mr Mackie into the stairwell at the far end of the lower ground floor corridor at about 0505 hours.
195 BA team 1 made its way up the stairs. It took the team a matter of seconds. They reached the landing in the area marked store on production 1744. Visibility was virtually nil as a result of the thick black smoke[2586]. At the top of the stairs Mr Clark briefed Mr Mackie. This took about 30 seconds. He instructed Mr Mackie that they would do a right hand search until it became untenable without the protection of a hose reel[2587]. Although this ran contrary to training (which would normally require that firefighters enter such an environment only with the protection of a hose reel) Mr Clark wanted to get into the corridor to render assistance as soon as possible[2588].
196 BA team 1 entered corridor 4b. Visibility was very poor. There was thick black smoke. Small pockets of fire were visible at floor level[2589].
Room 13
197 Adopting a right hand search pattern Mr Clark and Mr Mackie entered room 13. Visibility in the room was the same as it had been in the corridor. They could not see the beds and bumped into them while carrying out their search procedure[2590]. In the first bed they found a casualty who was unresponsive. Soot was visible around her nose and mouth. Mr Clark removed his glove and felt for a pulse but found none. Mr Mackie found a casualty in the second bed. She was also found to be unresponsive with no pulse. Mr Clark concluded that both residents in the room were deceased and told Mr Mackie that they should continue their search in the hope of finding residents who were alive[2591]. Both of the residents in room 13 were found in their beds. Mr Clark radioed his findings to Mr Campbell[2592]. Mr Clark estimated that they had spent about three minutes in room 13[2593]. Mr Mackie considered that they had been in for more than one minute[2594].
Room 12
198 Mr Clark and Mr Mackie felt their way along the wall to room 12. The visibility inside room 12 was the same as in room 13. Mr Clark came across a bed against the wall behind the door. They could feel that there was a resident in bed. They shone a torch on the resident and observed a female, Margaret Lappin, with a sooty face, nose and mouth. They checked her together and found no pulse or signs of life. They decided to leave the lady where she was and search other rooms in the hope of finding survivors[2595]. Mr Mackie's view was that they were in room 12 for at least 20 seconds and at most 1.5 minutes[2596]
199 In room 12, which was two doors along from the fire door just mentioned, the scene examination of the room subsequent to the fire revealed that a wall clock had stopped at just before 0440 hours as a result of the plastic face melting and stopping the movement of the hands[2597]. This is itself an adminicle of evidence that, at about that time, the fire had reached an advanced state of development at the far end of corridor 4b. It explains why, shortly after instructing Ms Queen to call the fire brigade (which she did at about 0437 hours) Mr Norton was able to hear crackling noises from the stairwell leading to corridor 4b[2598].
Room 11
200 Mr Clark and Mr Mackie then entered room 11. The door was closed and intact. On opening the door the room was smoky but the smoke was more grey than black. When they entered the room Mr Clark and Mr Mackie could see a bed with a lady, Isabella MacLeod, lying in it. Mr Clark approached the bed and gave the lady a shake. She groaned. Mr Clark found a weak pulse. He confirmed with Mr Mackie that they should evacuate her[2599].
201 Once Mr Clark and Mr Mackie had the resident in the corridor they headed towards the dog leg. Having become aware of the layout on the lower ground floor it was decided that this was the route to take[2600]. As they moved up corridor 4b Mr Mackie's BA set became entangled in ducting hanging down from the ceiling[2601]. Mr Buick, who was engaged in a search from the opposite end of corridor 4, came to Mr Mackie's aid and removed the ducting to allow them to continue[2602]. Mr Clark and Mr Mackie then carried Isabella MacLeod to the Rose Lounge where they attracted the attention of a paramedic. The paramedic confirmed that the resident was still alive. Mr Clark having informed him that they had left three casualties in their rooms the paramedic said that they should evacuate them regardless in order that their condition could be checked[2603].
202 Mr Mackie's (unchallenged) evidence was that he thought that 3 or 4 minutes had elapsed between them first entering corridor 4 and removing the resident from room 11[2604]. Allowing for the period of time - estimated by Mr Clark to be measurable in seconds - for the BA team to ascend the stairwell from the lower ground floor and to prepare to enter corridor 4b, it is reasonable to place the time of rescue of the occupant of room 11, Isabella MacLeod, at, or very close to, 0509 hours, entry having been made to the stairwell at 0505 hours[2605].
Return to Corridor 4
203 Mr Clark and Mr Mackie returned to room 12 and, with the assistance of a quilt, carried Mrs Lappin as far as room 61 (the day room). On the instructions of Leading Firefighter MacDiarmid she was placed in room 61[2606].
204 Both firefighters returned to corridor 4a. There was still thick black smoke and they required to use BA although conditions were slightly better[2607]. Mr Mackie was running short of air and his whistle was sounding. They recovered another female casualty from another room. She was found in bed. She had a sooty face and was unresponsive. Although Mr Clark was uncertain to which room they returned, one may conclude that they returned to room 17. This is because Mr Clark and Mr Mackie were involved in removing the resident along the corridor towards the dayroom. The occupant of room 17, Agnes Dennison, was one of only three residents in corridor 4 to be taken to room 61. The others were Margaret Lappin, whose recovery from room 12 by BA team 1 has just been described, and Thomas Cook, whose removal to room 61 is accounted for in the evidence of others.
205 In their evidence Mr Clark and Mr Mackie spoke to placing Mrs Dennison in the corridor short of room 61 (probably just inside corridor 3, outside room 20), meeting another BA team comprising Colin Gray and Gordon Hector heading into the ground floor corridor, and Mr Clark asking that team to take Mrs Dennison to room 61. By that time both Mr Clark and Mr Mackie were physically drained and Mr Mackie had hurt his back and his air pressure warning was sounding[2608]. They concluded search and rescue work at this point. The breath readings in the Datalog report for set 344 come to an end at 0519:09 hours. Mr Clark considered that a period of 14 minutes (from 0505 to 0519 hours) was consistent with the amount of time he had spent effecting search and rescue in corridor 4[2609].
Search and Rescue Operations by BA Team 2 (Buick, Ferguson and Buchan) - Corridor 3
206 While Mr Clark and Mr Mackie entered the foyer Mr Buick went to the Hamilton appliance, E012, which had followed round from New Edinburgh Road and parked alongside[2610], to tell the crew what he had found out. The Hamilton crew comprised, in addition to Leading Firefighter MacDiarmid, Firefighters David Ferguson, Jamie Buchan, Ross French and Colin Gray[2611].
207 Mr MacDiarmid, Mr Ferguson and Mr Buchan entered the Home, along with Mr Buick[2612]. Mr Buick, Mr Ferguson and Mr Buchan formed a team together[2613]. They were briefed by Mr Campbell. The precise nature of the briefing is unclear.
208 According to Mr Campbell the team was briefed to proceed through the lift enclosure and into the corridor 3, ascertain what the position was and, of necessary, remove residents to a position away from the lift enclosure or just bring them out; the Rose Lounge would be the meeting point[2614]. Mr Campbell asserted that his original plan had been that the residents would be taken either to the next zone or to the end of the corridor and down the fire escape at the far end of corridor 4b. He asked the fire officers to investigate whether this was feasible. Although he would usually instruct a left or a right hand search, Mr Campbell believed that the residents would be in their rooms. Accordingly, he told the BA team to check all of the rooms on both sides of corridor 3. His instructions about what the team was to do in corridor 4 depended on what conditions were found there.[2615]
209 Mr Buick's understanding of their instructions was that they should start searching from corridor 3 and sweep the whole ground floor corridor (which is, in fact, what they proceeded to do)[2616], which, by implication involved evacuating any residents they found. Once they got to corridor 3 the plan, decided amongst the three firefighters, was to deviate from the usual left or right hand search and instead carry out a zig zag search down the corridor[2617].
210 Mr Ferguson's understanding of their instructions was that there were persons unaccounted for and that they were to go and search beyond the lift area and start evacuating rooms and bring the residents to the lounge area. They were not given any definitive search pattern to follow[2618].
211 Mr Mackie, under reference to his police statement dated 4th February 2004 (which he adopted as accurate) recorded that Mr Campbell had instructed the team to conduct a room to room search beyond the lift area[2619].
212 Whatever the precise scope of Mr Campbell's instructions, what in fact occurred was that BA team 2 entered corridor 3 and conducted a search of the bedrooms on both sides of the corridor.
213 CCTV footage of the foyer places the deployment of BA team 2 at 0557:47 (0453:28) hours[2620]. On entry into corridor 3 visibility was reduced to about one foot because of heavy smoke logging. There was also a rise in temperature[2621].
214 The first room visited by Mr Buick was room 4[2622]. He thought that Buchan and Ferguson went into room 20 opposite and evacuated the resident there while he shut the door and waited in room 4 for assistance. He did not want to take the resident, Mary Dick into the corridor on his own because of the smoke[2623].
215 It is not possible to specify with precision the order in which the residents were evacuated because of differing recollections as between Mr Buick and Mr Ferguson about who searched which side of corridor 3. However, the probable course of events can be established by reference to their evidence and the CCTV footage showing casualties being taken to the Rose Lounge.
216 The CCTV footage[2624] records casualties from corridor 3 being taken across the foyer in the direction of the Rose Lounge at the following times:
1. First Casualty - 0559:37 (0455:18) hours
2. Second Casualty - 0601:34 (0457:15) hours
3. Third Casualty - 0604:42 (0500:23) hours
4. Fourth Casualty - 0605:01 (0500:42) hours
5. Fifth Casualty - 0608:46 (0504:27) hours
6. Sixth Casualty - 0610:45 (0506:26) hours
These timings indicate that the evacuation of corridor 3 was effected in about 11 minutes.
217 Mr Buick stated that the residents in rooms 18 and 6 would have been evacuated towards the end of the evacuation of corridor 3. This was consistent with the search pattern in which they started at rooms 20 and 4 and zig-zagged down to rooms 6 and 18[2625]. Equally, Mr Ferguson thought that rooms 4 and 20 were the first rooms to be searched while room 18 and the bathroom would have been the last to be searched[2626].
218 Mary Dick was the only resident in corridor 3 capable of walking[2627]. It is apparent, therefore, that she was the second casualty caught on the CCTV footage. Accordingly, on the search approach described by the witnesses, it is probable that Isabella MacLachlan was the first casualty to be evacuated to the Rose Lounge (and to be caught on the CCTV footage).
219 David Ferguson also gave evidence that one of the residents in corridor 3 was taken by him to the foyer in a wheelchair[2628]. He thought that the resident, a female, was from room 5. When Firefighter John Devine actually treated Jean Paterson in the Rose Lounge; she was then in a wheelchair[2629]. In the CCTV footage the third casualty to pass through the foyer appeared to be in a wheelchair[2630]. This evidence strongly suggests that Jean Paterson was the third resident to be evacuated from corridor 3 to the Rose Lounge, (although the CCTV footage shows that the third and fourth residents reached the foyer within seconds of each other).
220 In relation to the order in which the occupants of rooms 6 and 18 were evacuated, the only evidence, apart from that which is advised by the pattern of search referred to above, was given by Mr Ferguson. He thought that Richard Russell was either the fourth or the fifth casualty to appear on the CCTV footage in the foyer[2631]. The balance of the evidence, therefore, favours the view that Margaret Gow, from room 18, was indeed the last resident to be evacuated from corridor 3.
221 Accordingly, the order in which the residents were evacuated from corridor, and were seen on the CCTV footage, can reasonably be stated to be as follows:
1. Isabella MacLachlan (room 20)
2. Mary Dick (room 4)
3. Jean Paterson (room 5)
4. Jessie Hadcroft (room 19)
5. Richard Russell (room 6)
6. Margaret Gow (room 18)[2632]
Make Pumps Three
222 Meanwhile, at 0455 hours, there is recorded a message stating "Make Pumps Three, enter via Rosepark Avenue, Confirmed"[2633].
223 Station Officer Campbell thought that he may have instructed the "Make Pumps" message once he had been told that there were casualties emerging from the ground floor corridor[2634]. He also recalled seeing people being taken to the Rose Lounge and that they appeared to be suffering the effects of smoke[2635]. Ultimately, his position appeared to be that, when he made Pumps 3, Mr Campbell had become aware that there was smoke in corridor 3[2636].
224 Mr Campbell said that he decided to make pumps three because at that point he still thought that he was dealing with a fire in the lift. No crew had reported having found the seat of the fire[2637]. Mr Campbell simply thought that there had been a spread of smoke into corridor 3. An additional appliance would give him one or two additional BA teams and that would allow him to evacuate the area beyond the lift enclosure[2638].
225 Mr Campbell rejected the proposition that calling for one additional appliance was wholly inadequate in the circumstances that existed at the time[2639]. Mr Campbell did not think that the smoke would have travelled beyond corridor 3 as far as the dogleg in corridor 4[2640]. On further questioning he conceded that it was a possibility that smoke could have travelled into corridor 4[2641]. The existence of smoke logging did not affect Mr Campbell's expectation that smoke would not have penetrated into corridor 4[2642].
226 It is not clear why that expectation can have survived the discovery of smoke beyond corridor 2, and no coherent explanation was offered as to why it should have done.
227 What Mr Campbell did know by the time he made Pumps 3 was the number of residents in the entire ground floor corridor[2643]. Even if, until then, Mr Campbell had not been convinced of the need for appreciably greater resources (as Sir Graham Meldrum considers he should have been) the knowledge that there was now smoke logging in corridor 3 ought to have caused Mr Campbell to appreciate that he was dealing with a very serious incident. The decision to call for only one additional appliance at this time meant that the incident continued to be significantly under-resourced.
Search and Rescue Operations by BA Team 2 (Buick, Ferguson and Buchan) - Corridor 4
228 Having evacuated the six residents from corridor 3 BA team 2 headed back along the corridor[2644] and went through the fire door at the end of corridor 3, which was closed, to corridor 4[2645]. If there had been an additional BA team assisting BA team 2 in corridor 3, that corridor would have been evacuated more quickly and, consequently, the entry into corridor 4 would have been sooner[2646].
229 On entering corridor 4 there was a rise in temperature and visibility was virtually non-existent because of thick black smoke[2647]. Photograph 887T shows the area of corridor 4 where BA team 2 entered. Initially the team stuck together, and kept in physical contact with each other because of the conditions[2648][2649]. They commenced a left sided search and checked the two WCs, finding nothing of significance[2650]. Nobody was conducting a right sided search at this point[2651]. Between them, they checked rooms 7 and 8, and the sluice room, and found them to be empty[2652].
230 As BA team 2 progressed along corridor 4a the temperature continued to rise[2653]. Under reference to photographs 887X and Y, Mr Ferguson recalled seeing a small flame at floor level outside cupboard A2 which, in slightly improving visibility he thought may have been the door on the ground in 887Y burning[2654]. Between rooms 7 and 8, Mr Buick also saw a small flame (which he stood on), about 2 inches high, at ground level, directly across from the door to the sluice room[2655]. Under reference to photograph 887X, Mr Buick thought that the flame was immediately in front of the square shaped piece of debris behind the chair and just outside cupboard A2[2656]. Mr Buchan also saw a fire the size of a small football in the same area[2657].
231 Whilst in room 8 Mr Buick heard BA team 1 shouting that they had someone[2658]. Mr Buick recalled that they shouted "Get her, get her out"[2659]. He split from Mr Ferguson and Mr Buchan and went to assist BA team 1 which was approaching from the opposite direction (ie. from the direction of the stairs at the far end of corridor 4)[2660]. They were carrying a resident. Mr Mackie had some foil ducting wrapped around his BA set[2661]. The ducting was hanging down outside rooms 10 and 11[2662]. Mr Buick unravelled this and helped BA team 1 as far as, roughly, room 17[2663]. Mr Clark and Mr Mackie then set off with Mrs Macleod along corridor 3[2664]. It is apparent from the evidence of BA team 1 that what Mr Buick observed was the evacuation of Isabella MacLeod from room 11.
232 At some point thereafter, but probably before he left the building to obtain a new oxygen cylinder[2665], Mr Buick went into room 16. By this stage his BA warning whistle was sounding continuously[2666]. Mr Buick found an elderly male, Thomas Cook, lying on the floor. He was fully clothed. The door to room 16 was open. The room itself was heavily smoke logged, as depicted in photograph 340B. Mr Buick formed the view that Mr Cook was dead. Another firefighter in the vicinity, whom Mr Buick thought was Firefighter Gordon Hector, assisted Mr Buick to evacuate Thomas Cook along the corridor. They were instructed by Leading Firefighter MacDiarmid to place Mr Cook in room 61, the day room[2667]. At the day room Mr Buick confirmed that Mr Cook was deceased. There was no pulse and no other vital signs of life[2668].
233 Meanwhile, Mr Ferguson and Mr Buchan proceeded to room 9. Mr Ferguson observed a resident, Julia McRoberts, lying on her back on the bed nearest the door[2669]. At this point there were a total of four fighters in the vicinity; they included Firefighter Alan Campbell and Firefighter Colin Gray (although in this respect it should be noted that Mr Campbell was accompanied by Firefighter Brendan O'Dowd). Miss McRoberts was unresponsive and her face was covered with soot. The fire officers attempted to lift her out of bed and managed to place her on the floor. No signs of life having been found, however, a decision was taken that she should be left in situ. At this point Mr Ferguson's low pressure warning was sounding and he and Mr Buchan headed out to the foyer. Mr Buchan spoke to an intervening return to the foyer to report the progress of the search. He related that Mr Clark, no longer on BA, had asked him to return to the casualty at room 9 and try and evacuate her, whereafter further attempts were made to do so. While Mr Ferguson did not speak to this event, it is entirely possible that Mr Buchan was correct. It would account for why Firefighter Gray, a member of BA team 4 and whose search appears to have coincided with the completion of search and rescue by BA team 1, was present at room 9 at the same time as BA team 2[2670]. It would also explain why Firefighter Alexander (known as Alan) Campbell spoke to encountering BA team 2 and two other fire fighters (which in the circumstances must have been BA team 4) when they visited room 9[2671].[2672]
234 Mr Buick returned again to corridor 4 after changing his cylinder. Whilst he was outside there were other teams in corridor 4[2673]. Mr Buick was instructed by Assistant Divisional Officer Atkinson to return to corridor 4 and count the number of fatalities[2674]. He did so. He looked into rooms 17, 16, 15, 14, and then from room 13 round to room 9. Mr Buick counted 7 fatalities, all within bedrooms in corridor 4. He also counted 3 fatalities positioned in room 61[2675].
Make Pumps Four
235 Station Officer Campbell's Make Pumps 4 message was logged at 0506 hours[2676]. The Full Incident Log, therefore, records a passage of time of 11 minutes between the Make Pumps 3 and Make Pumps 4 messages[2677].
236 Mr Campbell anticipated that the fourth appliance would provide him with additional BA wearers who could assist in the search and evacuation of corridor 4[2678]. The situation was developing and Mr Campbell had become aware that the entire upper floor beyond the lift enclosure had become smoke logged[2679].
237 Ultimately, Mr Campbell accepted that it would be accurate to say (as he did in his statement to the police on 2nd February 2004) that, in making Pumps 4, he realized that the number of residents in the Home were too great for the number of firefighters then available[2680]. No mention was made of the need for extra resources to fight the fire.
238 Mr Campbell was not aware of how long it would take for additional resources to reach Rosepark in response to the Make Pumps 4 message[2681].
239 In summary, Mr Campbell thought it was possible that his Make Pumps 3 message was a response to discovering that corridor 3 was smoke logged, and his Make Pumps 4 message was a response to discovering that corridor 4 was smoke logged[2682].
The Arrival of E011
240 E011, the Hamilton first appliance, was actually the second of the Hamilton appliances to attend the incident. It was mobilised at 0456:32 hours in response to Station Officer Campbell's instruction to make Pumps 3, and was mobile to the incident at 0458:57 hours[2683].
241 The crew of E011 comprised Sub Officer Alastair Ross (Officer in Charge), and Firefighters Alan Campbell (BA wearer), Brendan O'Dowd (BA wearer), John Devine (BA Entry Control) and Gordon Hector (driver)[2684]
242 The arrival time of E011 is recorded in the Incident Resource History as being 0552:42 hours. The log entry is clearly erroneous. Members of the crew of E011, who gave evidence, were clearly engaged actively at the incident long before this time. It is possible that other data traffic on the radio channel could block the signal from the appliance[2685].
243 The driver of E011, Firefighter Gordon Hector thought that it had taken about five minutes, or under, to travel from Hamilton to Rosepark[2686]. That would be consistent with the travel of time of 5 minutes and 3 seconds ascribed to E012 by the Incident Resource History[2687].
244 E011 initially attended at the New Edinburgh Road end of Rosepark. There had been an instruction to enter via Rosepark Avenue[2688] but, because the crew were donning fire kit in the back of the appliance there had not been time to consult a map[2689]. The VMDS on E011 was not working[2690].
245 Blue flashing lights were visible at the other end of Rosepark. Mr Hector initially attempted to gain access to that end of Rosepark by turning right off New Edinburgh Road but could not do so. The crew successfully found the right address on the map and Mr Hector executed a u-turn and drove the appliance to Rosepark Avenue[2691]
246 Allowing for the manoeuvring on New Edinburgh Road it is reasonable to conclude that E011 arrived at Rosepark at or shortly after 0505 hours.
247 Sub Officer Ross disembarked and spoke to Firefighter Caldwell of the Bellshill crew. He assisted Mr Caldwell to open the gate which can be seen in photographs 887H and 887I[2692].
248 Sub Officer Ross then entered the building. He identified himself as having entered the foyer just before the CCTV footage was paused at 0616.02 (0511:43) hours[2693]. He saw Station Officer Campbell talking to a police officer and a paramedic[2694].
249 Mr Ross approached Station Officer Campbell and asked him where the fire was. Mr Campbell replied that he believed the fire to be in the lift area[2695]. If that was correct (and it was not suggested to Mr Ross that it was not) then, even after the instruction to make Pumps 4, Station Officer Campbell was unaware of the whereabouts of the seat of the fire.
250 Mr Ross offered to obtain a plan of the building from the VMDS system in order to assist with the briefing of BA teams[2696]. He first approached Firefighter Caldwell of E031 at about 0616:25 (0511:06) hours[2697] and was told that the VMDS was not working[2698]. He then approached Firefighter Gray of E012. He was told that the VMDS was operational. However, the printer was out of paper so Mr Ross was unable to provide Mr Campbell with a plan from any of the first three attending appliances[2699].
251 He did, however, relate to Station Officer Campbell that he had seen on the VMDS that there was a further protected stairway enclosure to the west of the building[2700].
252 Having failed to secure a VMDS plan Mr Ross was involved at the front of the building. He assisted in carrying a resident to the Rose Lounge and extending the hose reel to the area of the lift, using a round table to hold open the fire door at room 1[2701].
253 It is unclear on the evidence which resident was being assisted to the Rose Lounge. By this time (sometime after 0511 hours) the residents of corridor 3 had been evacuated. The only other residents evacuated to the Rose Lounge thereafter were Robina Burns and Isabella MacLeod. Mrs MacLeod's rescue, estimated at approximately, 0509 hours, is the closest in time to the events described by Mr Ross.
254 The moving of the fire hose was identified from the CCTV from 0624:43 (0520:24) hours[2702]
255 Mr Ross thereafter descended to the lower level in order to assess the extent of the fire, smoke spread and to locate casualties[2703]
Search and Rescue Operations by BA team 3 (Campbell and O'Dowd)
256 Meanwhile, BA team 3 which formed part of the crew of E011[2704] was deployed along corridor 3.
257 On the arrival of the appliance, Firefighter Campbell spoke to Station Officer Campbell, who was standing at the main doors to the building. Station Officer Campbell instructed BA team 3 to go down the main corridor and carry out a search[2705]. Mr Campbell was also advised, and Mr O'Dowd was aware, that there were two other BA teams already searching in the building; one (in Mr Campbell's recollection) was in the basement and one was ahead of them. It was a very short and general brief[2706]. BA team 3 was given no indication of the layout of the building, the number of bedrooms or the number of people there[2707].
Search of Corridor 3
258 Mr Campbell and Mr Dowd headed along to corridor 3. CCTV footage times the commencement of their search at 0615:59 (0511:40) hours (some 5 minutes after the sixth casualty was observed to be evacuated from corridor 3 to the foyer)[2708] Visibility there was still very poor with the smoke extending down to ground level[2709]. When they entered corridor 3 Mr Campbell and Mr O'Dowd checked to make sure that no one was in any of the bedrooms. Mr Campbell went right and Mr O' Dowd went left. They did not, at that stage, know whether this part of the Home had been searched before[2710] but some of the rooms looked as though they had been[2711].
Search of Corridor 4
259 BA team 3 entered corridor 4[2712]. It was warmer than in corridor 3[2713].
Room 17
260 To the right, and beyond the fire door between corridors 3 and 4, lay room 17. Mr Campbell spoke to finding a resident, Agnes Dennison, in room 17, on top of the bed while his colleague was searching the other side of corridor 4[2714]. Conditions in room 17 were the same as they were in the corridor[2715]. Invited to compare those conditions with the conditions in the photograph of room 10 shown in 354C, Mr Campbell adopted the expression "night and day"[2716].
261 BA team 3 checked Mrs Dennison for any signs of life. They found no pulse. They concluded that she was deceased[2717]. According to Mr Campbell another firefighter assisted BA team 3 to take Agnes Dennison towards the foyer[2718]. It is the presence of this other firefighter which, in circumstances which might be thought to be redolent of confusion in recollection, links this chapter of the evidence with the evidence of BA team 1 relative to room 17. Mr Campbell thought that he and Mr O'Dowd left Mrs Dennison with a firefighter, probably Leading Firefighter MacDiarmid, and a paramedic. He also thought that they had handed her over in the vicinity of room 61, the day room, and was subsequently told that she had been taken into that room[2719].
Room 16
262 BA team 3 returned to corridor 4 and searched all of the rooms down to the dogleg[2720]. They looked into room 16 (Thomas Cook) but there was, by then, nobody in that room[2721]
Rooms 7 and 8
263 Between them BA team 3 appears to have checked rooms 7 and 8, Mr Campbell describing how they checked each room down to the dogleg[2722].
Cupboards
264 Mr O'Dowd saw pockets of fire in the vicinity of cupboard A2. He removed the left hand door to the cupboard and placed it, he thought, next to the sluice room. The right hand door was partially destroyed and Mr O'Dowd thought that it had been slightly open. There was a smouldering fire, mostly burnt out, at the right hand side of the cupboard. There was damage within the cupboard. The electrics on the left hand side were damaged and It looked as though an electrical meter on the left hand wall of the interior of the cupboard had been damage. There was a lot of damage on the left hand side but nothing left to burn. The right hand side was still slightly alight. Mr O'Dowd went back and retrieved a hose reel. He used it to put out the fire on the right hand side of the cupboard, away from the electrics. He also used it on the bath chair which was located at the dogleg[2723].
Room 9
265 While Mr O'Dowd fetched the hose reel Mr Campbell reached room 9 where BA team 2 were attending to Julia McRoberts. There were two further firefighters in the area. Mr Ferguson was exhausted and disorientated and Mr Campbell assisted him back to the vicinity of corridor 2[2724].
Room 15
266 Having checked the shower and WC opposite room 10[2725] Mr O'Dowd, followed by Mr Campbell, entered room 15. The room was heavily smoke logged. The conditions were the same as, or only slightly better than, those found in the corridor. They found the occupant, Margaret Dorothy (Dora) McWee, lying on the bed. She was examined for signs of life but none were found. BA team 3 concluded that she was deceased and elected to continue the search. They broke the glass in the windows to clear out the smoke[2726].
267 They resumed their search of corridor 4b, the intention being to cover the bedrooms on both sides[2727]
Rooms 10 and 11
268 Neither Mr Campbell nor Mr O'Dowd looked into room 10. Mr Campbell did not recall being in any room where the conditions were as clear as they were in room 10 and room 11[2728].
Room 12
269 Mr Campbell (and possibly Mr O'Dowd) checked room 12 and found nobody within[2729]. It had previously been checked by BA team 1.
Room 13
270 Both Mr Campbell and Mr O'Dowd checked room 13. It had previously been visited by BA team 1. They found two casualties, both of whom were again checked for vital signs of life, without success[2730].
Room 14
271 Both Mr Campbell and Mr O'Dowd checked room 14. There were two residents in room 14. One of them was lying on the floor. The other resident was in bed. Both were checked for vital signs of life, without success, and left in situ. Visiblity was better at the far end of corridor but the room was still smoky[2731].
272 On completion of the search BA team 3 descended the stairway at the end of corridor 4 and reported to Station Officer Campbell back at the foyer[2732]. Mr O'Dowd confirmed that they had ventilated the rooms where they had located casualties[2733].
Search and Rescue Operations by BA team 4 (Gray and Hector)
273 Colin Gray was the driver of the second Hamilton appliance, E012, which was mobilized in along with E031 from Bellshill. After initially mobilizing to New Edinburgh Road, Mr Gray parked E012 at the Rosepark Avenue entrance to the Home to enable the crew to dismount. He then parked up at the top carpark and assisted in laying out the hose from E031[2734].
274 Mr Gray offloaded medical equipment from both appliances and was asked by Firefighter Caldwell, of E031, about the establishment of a BA entry control board[2735]. However, he became involved in assisting with breaking the lock of the gate to the (west) side of the Home leading to the garden from whence residents were in the process of being evacuated from the lower ground floor corridor[2736]. The BA entry control board was subsequently established by Firefighter Ross French[2737].
275 Mr Gray suggested to Station Officer Campbell that when the next Hamilton appliance, E011, arrived he (Mr Gray) should form a BA team with its driver (Firefighter Gordon Hector). Mr Campbell agreed with the suggestion[2738].
276 When E011 arrived, Mr Gray, within two to three minutes of its arrival, donned BA and advised Mr Hector to do likewise[2739]. Station Officer Campbell briefed them outside the premises. He told them to go in, locate the fire, and put it out[2740]. At the time the seat of the fire had still not been established and, although Mr Campbell still thought that the fire was in the area of the lift, he was aware of the possibility of unseen fire spread[2741].
277 As matters transpired, BA team 4 met Sub Officer Clark in the foyer. Mr Clark was in BA but did not have his mask on. Mr Clark changed the team's instructions. He told them that the fire was out and that the team was to to go and retrieve a casualty who had been left at the fire door after the lift. BA team 4 headed along to corridor 3. As they entered corridor 3 there was a female casualty along the right hand wall of the corridor in the vicinity of room 10. Mr Gray and Mr Hector carried her to room 61, the day room. Mr Gray had her legs (thereby confirming that the person they were carrying cannot have been Margaret Lappin and must, therefore, have been Agnes Dennison). Mr Gray thought (probably mistakenly, in view of the evidence of BA team 1) that there was no one else in the day room when they went in. BA team 4 then reported to Mr Clark who told them that there were still persons unaccounted for in rooms 9-18. Mr Clark had, by then, concluded BA operations. He was standing with the owner holding a plan of the Home[2742].
Search of Corridor 3
278 Mr Gray and Mr Hector conducted a left hand search through the ground floor corridor. They searched every room on the left hand side of corridor 3 and found no one there[2743]. They opened windows as they searched in order to ventilate the building[2744]. When they searched rooms 4, 5 and 6 BA team 4 did not know whether these rooms had already been searched[2745].
279 Mr Hector estimated that it had taken 2-3 minutes, perhaps as much as 5, to search corridor 3. They searched corridor 3 because they had no idea where the corridor started or finished and it was, he said, good housekeeping to make sure that the corridors had been properly searched. Mr Hector did not know whether corridor 3 was where Mr Clark had wanted them to search[2746].
Search of Corridor 4
280 The left hand search continued in corridor 4[2747]. BA team 4 found no one in the WCs, the sluice room and rooms 7 and 8. They were ventilating the rooms as they went[2748].
Room 9
281 At room 9 they met Buchan and Ferguson who were already there trying to lift a casualty, Julia McRoberts, Mr Gray believed that Alan Campbell was there as well. Julia McRoberts was a possible fatality, and Mr Gray believed that she was already dead. They tried to assist but could not lift her. They did not go all the way into the room. There was smoke down to ground level in this room. They could not tell that it was a double bedroom. They did not go as far as the bed on the other side of the room. Because they could not lift her they took a collective decision that Mr Gray and Mr Hector would continue to search along the corridor. So far as Mr Gray was aware room 9 was not vented[2749].
Room 10
282 The door to room 10 was shut, and remarkably intact. The plastic kick plate at the bottom of the door had melted onto the frame. Mr Gray did not think it had been opened. In fact, as the submission of SF&R observes, Mrs Burns' statement evidenced the fact that she had opened her door after the fire had broken out. It also disclosed that Mrs Burns quickly closed the door again[2750].
283 Mr Gray went into the room. There was a lady sitting in front of him, on a chair, slumped over to the right. Mr Gray was referred to photograph 354C. The view was consistent with his recollection of the interior of the room. The conditions in the room were very good compared with those in the corridor. There was not a great deal of smoke in the room. Compared with room 9, room 10 was remarkably intact. Mr Gray did not notice whether the window was open or shut. Mr Gray did not think it would have been life threatening for him to have taken off his mask in the room, although they had opened the door and therefore let smoke in.
284 The chair was directly in front of the door as he walked in. Mr Gray and Mr Hector approached her. She seemed to be comatose. She grunted. Mr Hector said that he had seen her eyes move. They decided to evacuate her immediately. They took her along the corridor to the foyer area. As soon as they walked through the door to that area, Leading Firefighter MacDiarmid took over from Mr Gray and carried her, along with Gordon Hector, towards the front of the building. Mr Gray carried her top half and Mr Hector carried her bottom half. They had to take her out through corridor 4 which was still smoke logged although conditions were improving. They also had to take her through corridor 3 and 4 both of which were still smoky. They did not have the facility to give her oxygen whilst she was being removed. They try to transport casualties as quickly as possible, keeping them as low as possible, to minimise their smoke exposure. By Mr Hector's estimate, which was unchallenged, it took BA team 4 about one minute, or possibly under one minute, to get from room 10 to corridor 1 with Mrs Burns[2751].
285 Mr Hector clarified, in cross examination, that before they entered room 10 BA team 4 had started ventilating the building, and that the conditions in corridor 4, when they entered room 10, would not have been as bad as they had been a few minutes previously[2752]
286 Mr Hector's unchallenged evidence was that Mrs Burns could be seen being evacuated on the CCTV footage at about 0644:20 (0540:01) hours[2753]. Taking into account Mr Hector's evidence about how long it took to evacuate her from room 10, one can place her time of rescue at about 0539 hours (or some 49 minutes after BA team 1 deployed at 0450 hours[2754]).
287 There is independent support for the accuracy of his testimony. Mr Hector identified from the footage the presence of Leading Firefighter McDiarmid, Firefighter Caldwell and himself. Mr Gray was not there[2755]. This accords with Mr Gray's evidence that, whilst Mr Hector and Mr McDiarmid carried Mrs Burns the last part of the way to the Rose Lounge, he returned to corridor 4 and encountered, and dealt with, a small fire in the vicinity of cupboard A2[2756]. Moreover, Firefighter John Devine, a fire officer who assisted with casualties in the Rose Lounge, was able to identify the casualty filmed on CCTV being carried to the Rose Lounge at 0644:20 (0540:01) hours as the last casualty to be brought out to that place[2757].
288 There is no evidence that anyone was evacuated to the Rose Lounge later than Mrs Burns. In the circumstances it can be concluded with reasonable certainty that the casualty shown in the CCTV and identified by Firefighter Hector was indeed Robina Burns, and that she did not reach the foyer until about 0540 hours[2758].
289 It is also instructive that, when asked approximately how far through the search and rescue operation of BA team 4 Robina Burns had been rescued from room 10, Mr Gray offered the answer 20 minutes[2759]. Assuming that they deployed at about 0519 hours (such being the evidence of BA team 1 about when they concluded BA operations and encountered Mr Gray and Mr Hector)[2760] then a rescue time shortly before 0540 hours looks entirely realistic.
Return to corridor 4 after evacuation of Mrs Burns
290 It appears that both Mr Gray and Mr Hector returned to corridor 4 after Mrs Burns' rescue[2761]. Their movements are not altogether clear. Mr Hector speaks to assisting Mr Buick conveying Thomas Cook from room 16 to room 61[2762]. In view of Mr Buick's evidence about when he entered room 16, and the timing of his departure from the Home for more oxygen, it is difficult to avoid the conclusion that Mr Hector was mistaken about the timing of his involvement in the evacuation of Thomas Cook. Mr Buick's search of room 16 appears to have occurred at a time when BA teams 2, 3 and 4 were in the vicinity of room 9, assisting Miss McRoberts. It cannot, therefore, be ruled out that Mr Hector helped Mr Buick at that time, rather than later[2763]. Equally, it cannot have been Thomas Cook in the CCTV footage at 0644:20 (0540:01) hours because Mr Cook was evacuated to room 61 rather than the foyer.
291 Having left Robina Burns with Mr Hector and Mr McDiarmid, Mr Gray returned to the area of the dogleg and attended to a small fire on the floor in the vicinity of cupboard A2[2764]. Mr Hector and Mr Gray met up again. By that time Mr Hector was getting to low on air. They headed to the foyer and went outside. Mr Hector was able to obtain a spare cylinder but Mr Gray could not do so; they had all been used up[2765]. BA team 4 was not thereafter redeployed in BA[2766].
292 Finally, BA team 4 was instructed by ADO Atkinson to count the number of fatalities in situ. They found ten fatalities in total, three of whom were located in room 61, and the remainder in their bedrooms[2767].
Movements of Sub-Officer Ross
293 Earlier in the incident Sub-Officer Alastair Ross had descended to the lower level. He had discovered that the smoke diminished as he did so and the fire exit at the bottom of the stairs at the lift was afar[2768].
294 Mr Ross proceeded along the lower level. The lights were on. There was nobody in any of the bedrooms. Mr Ross could hear the footfall of BA crews working on the floor above. He went as far as the fire door at the far end of the lower floor[2769].
295 Mr Ross proceeded up the stairs at the end of the lower level corridor. There was smoke in the stairwell which prevented him from reaching the top of the stairs. At the bottom of the stairs was a fire exit. It was not being used. Mr Ross decided that it would be best to use this as a second point of entry from which to operate[2770].
296 Mr Ross returned via the New Edinburgh Road elevation of the building to the main entrance, climbing over a padlocked gate near the fire exit on the way. Mr Ross could hear the sounds of breaking glass which he took to be either crews ventilating the building or windows cracking due to heat[2771].
297 Mr Ross reported his observations to Station Officer Campbell at the main entrance. He informed Mr Campbell that there was another protected stairwell, that it should be used as another point of entry, and that he (Mr Ross) should take charge of that sector. Mr Campbell agreed. Mr Ross observed, at this point, the arrival of E042, which was responding to the make Pumps 4 transmission[2772].
298 Mr Ross spoke to Leading Firefighter Gary Murphy, the officer in charge of E042, in the car park at the main entrance. E042 arrived at 0525 hours[2773]. He instructed Mr Murphy that the plan was to effect a second entry at the west ground floor enclosure, that Mr Murphy should re-deploy to New Edinburgh Road and instruct his crew to break the padlock on the gate in preparation for deployment of a BA crew there[2774].
299 Circumstances in Rosepark Avenue conspired against the re-deployment of E042 to New Edinburgh Road[2775]. As a result Mr Ross instructed Mr Murphy that, before donning BA, his crew should run a hose from the hydrant on New Edinburgh Road (on the basis that BA crews should not be committed without a hose). Mr Ross subsequently learned that the BA team from E042 was deployed through the main entrance[2776].
Make Pumps Six
300 Mr Ross recalled suggesting to Mr Campbell that they should make Pumps 6 because it would be prudent to have greater for resources available for all of the activities required[2777]. He was unsure when this exchange took place, and Mr Campbell did not recall Mr Ross as being the source of the suggestion[2778]. At all events, they agreed that a message should be transmitted, directing the additional appliances to attend at New Edinburgh Road[2779]. Since Mr Ross recalled observing the arrival of EO42 when he returned to the main entrance it is probable that any discussion about making Pumps 6 occurred shortly before the message was transmitted.
301 The Make Pumps 6 message is logged in the Full Incident Log at 0525 hours in the terms "Make Pumps 6 - Several possible fatalities Send on Fire Invest and Audio Visual"[2780].
302 In response to the Make Pumps Six message two further appliances were mobilized to attend at Rosepark. They were E041 and E022, and they were both mobilized at 0526:01 hours. E022 was mobile to the incident at 0528:18 hours in attendance at 0537:14 hours. EO41 was mobile to the incident at 0528:23 hours and in attendance at 0537:22 hours[2781]
303 Station Officer Campbell was under the impression that he already had sufficient resources to deal with the incident but, by making Pumps 6, he would get resources for relief of existing personnel, investigation or damping down procedures[2782]. He did not determine that additional resources were required. He was concerned to mobilize the command and control unit of Strathclyde Fire and Rescue and senior officers. The incident was extremely serious and would require investigation and the attendance of such officers[2783].
Search and Rescue Operations by BA team 5 (Nelson and Mitchell)
304 Paul Nelson was a BA wearer (BA1) on E042. The other member of the BA team was John Mitchell[2784].
305 While, at the request of Mr Ross, Mr Nelson was donning BA, the gate at the bottom fire exit near New Edinburgh Road was opened[2785].
306 Mr Nelson and Mr Mitchell did not deploy at the New Edinburgh Road end of the building. Instead, they approached the BA entry control point by the main entrance and spoke to Sub Officer Clark. He was sent in to locate and rescue casualties in rooms 14 and 15[2786]. BA team 5 headed along the upper level corridor[2787].
307 They entered corridor 4 and checked the rooms there. They met Mr Ross in a room where they were trying to move a casualty. This must have been room 14[2788]. The instructions changed in that they were told not to remove any casualties from their rooms. Instead they were to ventilate rooms, which they did[2789] Mr Nelson was able say was that he did not think that any of the 7 casualties he saw in corridor 4 were alive[2790].
308 As far as Mr Nelson was aware, BA team 5 was the last team to leave the building[2791].
Conclusion of operations
309 None of the appliances which were mobilized as a response to the message make Pumps 6 played any active part in the firefighting and search and rescue operations undertaken at Rosepark Care Home which, for all practical purposes, had concluded by the time of their arrival.
310 However, it was intended, at least by Sub Officer Alastair Ross who was to assume charge of the sector at the far end of the building (ie. the fire exit at the stairwell leading to corridor 4b), that they commit BA crews to the building[2792]. Mr Ross established BA entry control at the west end of the building with that intention in mind and spoke to the officers in charge of the two additional appliances when they arrived[2793].
311 At about the same time he ascended the stairwell and entered corridor 4. The smoke had cleared considerably. Mr Ross was able to walk along the corridor with the assistance of a torch and without BA. He shouted on a BA crew and received confirmation that the fire had been extinguished[2794]. He met BA team 5 in room 14. He thought (wrongly) that they had come up the new entry point at the west of the building[2795]
312 Mr Ross returned to the front of the building and reported to ADO Atkinson that there were fatalities in the building. Mr Atkinson instructed that they should be left in situ[2796].
313 When Mr Ross returned to the main entrance to report to ADO Atkinson there were two BA teams from the fifth and sixth appliances ready to deploy. They were told to stand by[2797].
314 Mr Ross returned to the new entry control point. He met a paramedic who asked to see the suspected fatalities. Mr Ross took him up to corridor 4. The paramedic then confirmed that the residents in the corridor were all dead[2798].
Casualty Treatment
315 Ross French was the designated BA entry control officer onboard E012[2799].
316 On arrival at the main entrance to Rosepark Mr French assisted Leading Firefighter McDiarmid to pull the hose reel from the appliance through the foyer[2800]. He then left the building and set up the BA entry control board. The Board, along with the tallies of those who had been deployed had been left out by the driver of E012[2801].
317 Normally, the BA entry control officer would remain at the BA entry control board. On this occasion Mr French and Mr McDiarmid saw that casualties were being brought out. They decided that it was more of a priority to render assistance because they thought that the BA crews had about 45 minutes worth of air[2802]. Mr French accompanied Mr McDiarmid into the Rose Lounge carrying a trauma kit which enabled him to supply oxygen to casualties there pending the arrival of paramedics. Mr French rendered first aid assistance to casualties in the Rose Lounge until paramedics arrived and took control[2803]
318 John Devine, the designated BA entry control officer for E011[2804], also ended up undertaking first aid duties rather than BA entry control[2805]. Mr Devine passed the tallys for BA team 3 (Campbell and O'Dowd) to Mr French and treated casualties on the instructions of Sub-Officer Ross[2806].
319 Leading Fire Fighter McDiarmid also provided first aid assistance in the Rose Lounge. Mr McDiarmid arranged for the administration of oxygen to the first casualty to be removed from corridor 3, Isabella MacLachlan[2807]. Mr McDiarmid also gave (unchallenged) evidence that all of the casualties who were brought to the Rose Lounge were immediately provided with oxygen; two resuscitators were used from fire appliances before paramedics arrived with their own oxygen supplies[2808].
320 Kenneth Frame, who was part of the Hamilton crew bearing callsign HAM507[2809], treated Isabella MacLachlan. He confirmed that, when he arrived at Rosepark, Mrs MacLachlan was already being administered oxygen[2810]. Mrs MacLachlan was treated with salbutamol, a solution that is used along with oxygen, both before and during the ambulance transfer to Wishaw General Hospital[2811];
321 In a medical report dated 14 September 2009 Dr RW Crofton, Consultant Physician, recorded that, on arrival at the Casualty Department of Wishaw General Hospital, Mrs MacLachlan had an oxygen saturation of 100%[2812];
322 Paramedic Gary Grierson, along with Paramedic Neil Mitchell, formed the first ambulance crew on the scene. Mr Grierson confirmed that those residents who were brought to the Rose Lounge suffering from breathing difficulties were administered oxygen either by the ambulance crew or members of the Fire Service[2813]. Mr Grierson also made specific mention of a patient who was brought to him. The patient was not breathing and required to be intubated. Mr Grierson used a bag and mask to apply oxygen until the Hamilton ambulance crew was available to take her to hospital[2814]. It is apparent that this was Margaret Gow, (since it was she who was taken to Monklands by the Hamilton crew, call sign HAM508) and that she remained on oxygen all the way to hospital[2815];
323 Neil Mitchell confirmed that oxygen was administered to residents by both Fire Service personnel and police and paramedics, including (by inference from the fact that she was handed over to the Hamilton ambulance crew) Margaret Gow[2816].
324 In an undated medical report comprising production 1726 Carol Murdoch, Consultant in Anaesthesia and Intensive Care, recorded that on arrival at Monklands Hospital Margaret Gow was breathing via an endotrachial tube but was well oxygenated. The report further records that, on her early transfer to Stobhill Hospital Intensive Care Unit, Margaret Gow remained fully ventilated[2817].
325 Ambulance Technician James Inglis, with his colleague Kenny Millar, formed the crew of the Motherwell ambulance MOT503[2818]. They treated Isabella MacLeod. She was unresponsive and was not breathing spontaneously. The crew carried out CPR and ventilated her, and this treatment was continued until they arrived at Monklands Hospital at 0548 hours[2819].
326 Mr Mitchell also intubated another elderly female patient who was not breathing but had a pulse. Since the patient concerned was, according to Mr Mitchell, taken to Monklands Hospital by the Motherwell crew one may conclude that he also was describing treatment administered to Isabella MacLeod[2820].
327 In an undated medical report comprising production 1727 Carol Murdoch, Consultant in Anaesthesia and Intensive Care, recorded that on arrival at Monklands Hospital Accident & Emergency Department Isabella MacLeod had been intubated and ventilated, that ventilation had continued, and that on her transfer to Stobhill Hospital at about 1630 hours on 31st January 2004 she was fully ventilated and well oxygenated[2821].
328 Paramedic Ross Munro, a member of the crew of GGE424, treated Jessie Hadcroft in the Rose Lounge after his arrival. The patient was already wearing an oxygen mask when he attended to her. He administered salbutamol via a nebulisation unit[2822].
329 In a medical report dated 16 September 2009, production 1716, Professor David Stott recorded that, on arrival at the Glasgow Royal Infirmary, Mrs Hadcroft was on high flow oxygen (100%)[2823].
330 Ross Munro was part of the crew that also treated Jean Paterson. He identified her Scottish Ambulance Service Patient Report Form as recording the treatment given to her. That form specified that Jean Paterson had been administered oxygen[2824].
331 In a medical report dated 15 September 2009, production 1715, Jennifer Burns, Consultant Physician, confirmed that, when she arrived at Glasgow Royal Infirmary, Jean Paterson had an initial oxygen saturation of 99% on air, and that she was continued on oxygen therapy[2825].
332 Kenneth Frame was part of the crew of ambulance HAM507 who treated Richard Russell and took him, along with Mrs MacLachlan, to Wishaw General Hospital. Mr Russell was in a wheelchair and was suffering from smoke inhalation. He was treated with oxygen and a nebuliser[2826];
333 In an undated medical report, production 1705, Dr J McCallion, Consultant Geriatrician, confirmed that on admission as an emergency to Wishaw General Hospital Richard Russell had oxygen saturations of 99% on 6 litres of oxygen[2827].
334 Firefighter John Devine spoke specifically to the last casualty to arrive in the Rose Lounge, Robina Burns, receiving oxygen prior to being removed by stretcher to an ambulance by paramedics[2828];
335 Ambulance Technician Thomas Lowrie, crewing the ambulance KRK434, confirmed that he secured the airway of, and administered oxygen to, a patient whom he later learned to be Robina Burns. They took her straight to the ambulance and conveyed her to Glasgow Royal Infirmary. In as much as he initially thought that the patient had not been on oxygen when he first attended, Mr Lowrie accepted that he could have taken over from a fire officer and would have had to replace any oxygen mask then in use with the one from the ambulance[2829];
336 In a medical report dated 18 September 2009, production 1714, Professor Peter Langhorne recorded that, following her arrival at Glasgow Royal Infirmary, Mrs Burns continued to be treated with oxygen[2830].
CHAPTER 29 (Formerly 24): THE POSITION OF BEDROOM DOORS ON THE NIGHT OF THE FIRE
In chapter 44(3)(B) the Crown propose a determination that it would have been a reasonable precaution for all bedroom doors to have been closed in the event that the fire alarm sounded, and that if such a precaution had been taken the deaths, or some of them, might have been avoided.
It is accordingly important to establish the positions of the bedroom doors at the time of the fire. The purpose of this chapter is to set out the Crown's proposed findings and to provide a narrative of the evidence in support of those findings.
Proposed Findings:
On the night of the fire the positions of the bedroom doors in corridors s and 4 were as follows:
(i)Room 4 was closed
(ii) Room 5 was partially open
(iii) Room 6 was Partially open
(iv) Room 9 was slightly open
(v) Room 10 was closed
(vi) Room 11 was closed
(vii) Room 12 was open
(viii) Room 13 was open
(ix) Room 14 was open
(x) Room 15 was open
(xi) Room 16 was open
(xii) Room 17 was open
(xiii) Room 18 was open
(xiv) Room 19 was partially open
(xv) Room 20 was open
Introduction
Evidence about the positions of the bedroom doors at night in corridors 3 and 4 comes from the following sources:
1. The evidence of Brigid Boyle concerning the practice at Rosepark relating to bedroom doors;
2. The evidence of Sarah Meaney concerning the practice at Rosepark relating to bedroom doors;
3. The evidence of other employees concerning the practice at Rosepark relating to bedroom doors;
4. The evidence of relatives of the deceased residents concerning those residents' preferences about how their doors were to be left at night;
5. The evidence of certain members of the staff on night shift on the night of the fire about the positions of the doors on the night of the fire;
6. The evidence of Fire Brigade personnel involved in the operation at Rosepark;
7. The findings of Professor David Purser in respect of the residents of corridor 3.
8. The photographic and scene examination evidence from the fire investigation .
1. The evidence of Brigid Boyle regarding practice within Rosepark
1. Brigid Boyle was matron at Rosepark between 1992 and 1997[2831].
2. At nights there were occasions when residents wished their doors to be kept open[2832].
3. If a resident wanted the door left open it would be left open[2833].
4. When Brigid Boyle was matron there were bedroom doors from which door closers had been removed. Some of the residents could not open the doors themselves and would have to buzz for assistance[2834].
2. The evidence of Sarah Meaney regarding practice within Rosepark
1. Sarah Meaney became matron of Rosepark in December 1998[2835];
2. The normal procedure would be to close the bedroom door unless the resident particularly requested it to be left open[2836];
3. The normal procedure would be to close the bedroom door unless the resident particularly requested it to be left open[2837];
4. Ms Meaney understood that there were safety reasons why bedroom doors should be closed[2838];
5. If a nurse on duty thought it appropriate to leave a door open in a particular case then that is what she would do[2839]
6. Staff at night may have left the bedroom doors of higher risk residents open so that they could check on them[2840];
7. The pros and cons of leaving bedroom doors open at night was never the subject of discussion between Miss Meaney and the night staff[2841];
8. The nurse in charge of the night shift would ultimately decide what procedure would be followed regarding the bedroom doors, so the position would not always be the same[2842].
3. Practice at Rosepark
As to the practice of leaving bedroom doors open at night, and the management's awareness of that practice, reference is made to chapter 15.
4. Evidence of the Preferences of Individual Residents
Evidence in respect of certain of the residents in corridors 3 and 4 who died during, or subsequent to, the fire was given as follows:
1. The preference of Annie Thomson (room 14) would have been for her door to be left open. Mrs Thomson liked to see what was going on outside and, when visited, she would ask that her door be left open[2843];
2. The preference of Helen (Ella) Crawford would probably also have been for her door to be left open. Although she had never visited last thing at night, Mrs Crawford's daughter, Mrs Bulloch, thought that her mother would still have wanted her door to be open. If open, the door to room 14 was held open with a wedge[2844];
3. The preference of Margaret Lappin (room 12) would have been for her door to be left open. Mrs Lappin's son, John Lappin, would leave her door open on conclusion of a visit. That was Mrs Lappin's preference[2845];
4. Margaret Dorothy (Dora) McWee (room 15) insisted that her bedroom door be left open if she was alone in her room. She suffered from a condition known as Charles Bonnet Syndrome. This caused Mrs McWee to suffer from hallucinations which caused her to see figures approaching her. Prior to Mrs McWee taking up residence at Rosepark her daughter, Miss Agnes McWee, prepared a detailed written list of instructions relating to her mother. Those instructions included reference to Mrs McWee's need to have her bedroom door kept open. The door to room 15 was heavy and required a wedge to keep it open. The door did not have to be fully open, but it had to be wedged sufficiently far open to allow Mrs McWee to be able to tell that the door was open[2846];
5. Isobel Caskie, the daughter of Isabella MacLachlan (room 20), thought that her mother would not have managed to open the door on her own if she needed to get up in the night. For that reason, Mrs Caskie thought that the bedroom door may have been wedged open[2847];
6. Initially Robina Burns (room 10) had liked to sleep with her bedroom door open. However, there had been occasions when other residents had wandered into her bedroom at night. At the time of the fire Mrs Burns preferred to sleep with the bedroom door closed[2848];
7. The nephew of Julia McRoberts (room 9), Patrick McGuire, thought that his aunt would have preferred her bedroom door to be left open because this was the way she had her bedroom door at home. When he left after a visit Mr McGuire would leave the door partially open. He thought (but was not sure) that a wedge was required to keep the door open[2849];
8. Thomas Cook (room 16) always wanted his bedroom door to be shut. In his previous care home Mr Cook had been allowed to lock his own door. While this had initially been permitted at Rosepark, Mr Cook's friend and neighbour, Gail Stewart, stated that she was told after about one week that this could not continue for reasons of safety. Mrs Stewart was aware that, on occasions, staff at Rosepark would wedge Mr Cook's door open. When she visited, however, Mrs Stewart would always, at Mr Cook's request, close the bedroom door[2850];
9. According to her grand-daughter, Deborah Milne, Ellen (Helen) Milne (room 13) would probably have preferred her bedroom door to be closed. If, however, the other resident in room 13 had wanted to door open then Ellen (Helen) Milne would probably have agreed to that[2851];
10. Helen Carpenter, the daughter of Annie (Nan) Stirrat (room 9), did not recall any discussion with staff at Rosepark about whether her mother's bedroom door should remain open or shut. Her recollection from visiting Rosepark was that all of the bedroom doors would be held open with wedges, as would the fire doors in the corridors[2852]
5. Evidence of Back and Night shift Members of Staff
Tracey Farrer
Miss Farrer was asked whether there existed any practice about whether or not bedroom doors would be left open at night. Her evidence was to the following effect:
1. The staff usually closed the doors.
2. There were a couple of residents who, she thought, asked for their door to be left open;
3. One of those who asked for her door to be left open was someone Miss Farrer knew as Bina Burns. (If Miss Farrer's recollection related to the time of the fire she was almost certainly incorrect);
4. Richard Russell liked his door to be wedged open just slightly; if it was not quite right he would shout on staff to open it slightly more[2853]
Yvonne Carlyle
Miss Carlyle was asked directly whether residents had their bedroom doors open or closed on the night of the fire. Her recollection may be summarized as follows:
1. Julia McRoberts always liked her door to be open so her door would have been open;
2. Richard Russell (room 6) always had his bedroom door open;
3. Robina Burns liked to have her bedroom door closed;
4. Thomas Cook liked to have his bedroom door closed. On the night of the fire, however, she recalled seeing that Mr Cook's door was actually open;
5. Mary Dick usually had her door closed;
6. Isabella MacLeod (room 11) liked to have her bedroom door closed[2854].
Irene Richmond
Mrs Richmond's recollection of the position regarding bedroom doors in corridors 3 and 4 on the night of the fire (under reference to an undated statement to the police, the terms of which she accepted) was as follows:
1. Richard Russell (room 6) liked his door to be open sufficiently far for a nurse to fit through the gap;
2. Margaret Dorothy (Dora) McWee (room 15) liked to have her bedroom door open;
3. The bedroom door to room 13 (Mary McKenner and Ellen (Helen) Milne) would have been open;
4. The bedroom door to room 14 (Helen (Ella) Crawford and Annie Thomson) would have been open;
5. The bedroom door to room 12 (Margaret Lappin) would have been open;
6. The bedroom door to room 9 (Julia McRoberts and Annie (Nan) Stirrat) would have been open;
7. It was possible that the doors to rooms 16, 17, 18 and 20 would also have been open.[2855]
Isobel Queen
Miss Queen's recollection of the position regarding bedroom doors in corridors 3 and 4 on the night of the fire (under reference to her police statement of 1st February 2004, the terms of which she accepted) was as follows:
1. Richard Russell insisted that his door was wedged open;
2. The bedroom door to room 9 (Julia McRoberts and Annie (Nan) Stirrat) was always open;
3. Margaret Lappin (room 12) left her door open;
4. Ms Queen was uncertain about the position of the door to room 14 (Annie Thomson and Helen (Ella) Crawford);
5. Margaret Dorothy (Dora) McWee (room 15) would leave her door open;
6. The door to room 16 (Thomas Cook) could have been open or shut because Mr Cook was a wanderer;
7. The door to room 18 (Margaret Gow) would be open;
8. Ms Queen thought that the door to room 19 (Jessie Hadcroft) would have been open, but she could not recall precisely;
9. Isabella MacLachlan's door (room 20) would definitely have been open[2856]
6. Evidence of Fire Brigade Personnel
i. The conditions in the corridors 3 and 4 inevitably have a bearing on the reliability of the evidence of firefighters about the positions of bedroom doors in corridors 3 and 4. That evidence does, however, support the following conclusions.
ii. The door to room 11 was closed and burnt[2857].
iii. The door to room 10 was closed[2858].
iv. The conditions in room 12 were not such as one would have expected if the door had been fully closed[2859]. One can infer that it was open.
v. The visibility in room 13 was the same as in the corridor. Had the door been fully closed there would have been a difference[2860]. One can infer that it was open.
vi. The door to room 16 was open[2861]
vii. The door to room 4 was closed[2862]
7. Evidence of Professor Purser: Residents in rooms off corridor 3
1. The severity of smoke inhalation is best estimated by measuring the blood carboxyhaemoglobin[2863]. In terms of outcome a carboxyhaemoglobin level in excess of 10% indicates that there has been smoke inhalation. A level of 20% indicates severe smoke inhalation[2864]. However, the chances of survival of an incident of smoke inhalation resulting in a carboxyhaemoglobin level up to, but not exceeding, 40% are high[2865]. A level in excess of 40% presents a much higher risk, and a level in excess of 50% presents a very high risk of mortality[2866].
2. Professor Purser prepared carboxyhaemoglobin concentrations for the residents in corridor 3, back calculated from hospital data. The results of his calculations were set out in Table 5 of his report amended to June 10th June 2010, production 2053[2867].
3. The back calculation for Margaret Gow was 44%-53% carboxyhaemoglobin.
4. The back calculation for Isabella MacLachlan was 42%-55% carboxyhaemoglobin.
5. The back calculation for Jean Paterson was 29%-32% carboxyhaemoglobin.
6. The back calculation for Richard Russell was 35%-38% carboxyhaemoglobin.
7. The back calculation for Jessie Hadcroft was 38%-41% carboxyhaemoglobin.
8. The sixth resident in corridor 3, Mary Dick, was essentially uninjured and required no hospital treatment[2868]. This lends support to the findings of the forensic evidence to the effect that the door to room 4 was closed on the night of the fire. Professor Purser proceeded on that basis. It is submitted that it was entirely reasonable for him to do so.
9. According to Professor Purser the results of the back calculations on the 5 residents from corridor 3 just mentioned show that the 3 who survived (Jean Paterson, Richard Russell, and Jessie Hadcroft) must have been better protected from the fire gases in corridor 3 than were Margaret Gow and Isabella MacLachlan.[2869]
10. Professor Purser concluded that there must have been some barrier between them and the fire gases in the corridor. However, they cannot have been completely closed rooms because then they would have had very low concentrations of carboxyhaemoglobin, perhaps as low as 12%[2870].
11. Accordingly Jean Paterson, Richard Russell and Jessie Hadcroft must have had a degree of exposure to smoke and asphyxiant gases[2871].
12. The %COHb levels for each of Jean Paterson, Richard Russell and Jessie Hadcroft were lower than those for Margaret Gow and Isabella MacLachlan[2872].
13. In a closed room in corridor 3 the level of exposure to smoke and asphyxiant gases is likely to have been minimal, as was the case with Mary Dick[2873].
14. A closed room occupant off corridor 3, who had to pass through the smoke in corridor 3 while being rescued might have achieved a %COHb concentration of about 12%, while an open room occupant would have achieved a level of around 44% under the conditions thought by Professor Purser to have subsisted in corridor 3 during the incident[2874].
15. On that basis Jean Paterson's room door must have been at least partly open[2875].
16. Standing her %COHb level Jessie Hadcroft's door must have been partially open, or open for a significant part of the time in the incident[2876]. She was said to have been black with soot[2877] which itself was an indication that she had been exposed to smoke and asphyxiant gases[2878].
17. As with Jean Paterson and Jessie Hadcroft, Richard Russell's %COHb level was much too high for his room door to have been completely closed throughout the fire, but lower than would be expected if it had been fully open throughout[2879].
18. It is likely that the smoke and carbon monoxide levels in room 4, which was known to be closed, would have been of the order of 12% COHb - the level of a heavy smoker[2880]. The blood %COHb levels for Jean Paterson, Richard Russell and Jessie Hadcroft were considerably in excess of those predicted had the room doors been closed. Accordingly, in Prodessor Purser's opinion, the doors for Jean Paterson, Richard Russell and Jessie Hadcroft had their doors partly open at the time of rescue[2881].
8. Photographic and scene examination evidence from the fire investigation
Photographic Evidence of Jill Cummings
1. After the fire, inspection of bedroom doors revealed that some bedroom doors were not fitted with door closers and that some door closers had been disabled. On 10th February 2004 Jill Cummings, a scene examiner with Strathclyde Police took the photographs contained in production 860 with the following results:
· The door to room 22 in corridor 1 had no door closer fitted but a line of three holes internally at the top[2882];
· The door to room 23 on the lower level had no door closer fitted but a line of three holes internally at the top[2883];
· The door to room 24 on the lower level had a door closer unit fitted to the door but no connecting arm[2884];
· The door to room 25 on the lower level had no door closer fitted but a line of three holes internally at the top[2885];
· The door to room 27 on the lower level had no door closer fitted but a line of three holes internally at the top[2886];
· The door to room 29 on the lower level had a door closer unit fitted but there was no sign of an arm[2887];
· The door to room 30 on the lower level had no door closer fitted but a line of three holes internally at the top[2888];
· The door to room 33 on the lower level had no door closer fitted but a line of three holes internally at the top[2889];
· The door to room 37 had no door closer fitted and no holes internally at the top[2890];
· The door to room 5 in corridor 3 had a door closer unit fitted to the door but no connecting arm[2891];
· The door to room 9 in corridor 4 had no door closer fitted but a line of three holes internally at the top[2892];
· The door to room 13 had a door closer unit fitted and a connecting arm was visible but not connected[2893];
· The door to room 14 had a door closer unit fitted and a connecting arm was again visible but apparently not connected[2894].
Photographic Evidence of David Thurley
2. David Thurley took a series of photographs on 2nd and 3rd February in his capacity as a Scene Examiner with Strathclyde Police. His photographic record is important in respect that it recorded certain patterns of damage which were then interpreted by the Forensic Scientists in offering their opinion as to whether particular bedroom doors were open at the time of the fire. The salient points of his evidence may be stated as follows:
3. Room 4
Production 331 contains photographs of light dusting of soot and inter alia a functioning door closer[2895].
4. Room 5
Production 326 contains photographs of a heavier level of soot dusting than in room 4 and inter alia a door closer fitted to the top of the bedroom door but not apparently functional[2896].
5. Room 6
Productions 326 and 329 contain photographs of heavier soot deposits than in room 5 and inter alia a functioning door closer[2897]
6. Room 20
Production 330 contains photographs of discolouration and soot deposits internal to the room. Production 324 contains photographs (particularly 324A, 324B and 324C) showing the appearance of contrast in colours on the carpet just beyond, and inside, the brass plate across the door threshold[2898].
7. Room 19
Production 327 contains photographs of soot deposits, albeit not particularly heavy in room 19 and, apparently, a working door closer and wedge. Discolouration is visible within the room above the door, moving up towards the ceiling[2899].
8. Room 18
Production 325 contains photographs showing a heavily stained external door and door frame, heavy soot staining internally, and an apparently connected door closer[2900].
9. Room 17
Production 341 contained photographs showing the external face of the bedroom door with fire damage describing an angular pattern, angular patterns of damage to the walls internal to the door, and heat damage to windows, ceiling and internal fittings[2901].
10. Room 16
Production 349 contained photographs showing the external face of the bedroom door describing an upward angular pattern from right to left. The interior views of the door show an angular pattern of heat and smoke damage to the walls and ceiling and damage to windows, ceiling (in both the bedroom and en suite toilet), destruction of internal fittings and a clean patch of carpet in way of the door consistent with the presence of a wedge[2902]. Room 15 was located further away from the dog leg than room 10[2903].
11. Room 7
Production 338 contained photographs showing the external face of the bedroom door with fire damage describing an angular pattern and, internally heavy soot deposits, evidence of burning to the carpet, ceiling damage and heat damage to internal fittings[2904].
12. Sluice Room
Production 337 contained photographs showing extensive damage both externally and internally. In the room there was clear evidence of soot staining and debris. Fittings had melted, the artex work on the ceiling had come down and there was heavy soot contamination of tiles and the basin. The pattern of damage on the outside of the door described an obvious angular pattern [2905].
13. Room 8
Production 339 contained photographs showing significant damage to the door, door frame and surrounding walls from floor to ceiling. The damage to the door described a diagonal pattern. Internally there was shown to be substantial damage with burnt and melted fittings, soot deposits, peeled wallpaper and angular patterned staining on the walls[2906].
14. Room 9
Production 355 contained photographs showing external damage to the bedroom door and surrounding walls, an angular pattern of blackening and wallpaper peeling on the wall inside the bedroom, heavily blackened and damaged interior (including collapse of the Artex ceiling), and the absence of a door closer[2907].
15. Room 10
Production 354 contained photographs showing extensive fire damage to the outside face of the door and surrounding walls from floor to ceiling height. Internally, however, there was a covering of soot which was very light compared with other rooms in the area. The photographs showed that the lampshade and curtains were intact and that there appeared to be no evidence of fire or heat damage save to the top third of the internal door frame and wall covering above the door. There was a fitted door closer[2908].
16. Room 11
Production 353 contained photographs showing extensive damage to the corridor outside the room and a heavily fire damaged door with door closer attached to its remains. The interior of the room looked relatively undamaged compared to the corridor. There was a relatively light covering of soot. There was no evidence of heat damage save in the area immediately next to the bedroom door, The light fittings, ceiling, walls and curtains were intact[2909].
17. Room 12
Production 352 contained photographs showing that, externally, the dado rail on the left hand side of the door was more damaged than on the right. The upper part of the door frame and hinged edge of the door were charred or blackened. The interior of the room was substantially more damaged than the interior of room 11. The Artex ceiling appeared to have collapsed in part. There was a heavy deposit of soot. The light shade had partially burnt away. The walls were stained and heat damaged in places. There was cracking to the window pane. The curtain rail had melted and the curtains had collapsed[2910].
18. Room 13
Production 351 contained photographs showing an angular pattern of damage to the external face of the door. By way of contrast the damage to the fire door at the end of the corridor ran straight across the door rather than at an angle. The damage to the door described a diagonal pattern. Internally heavy smoke damage was visible. It appeared that the curtain rails at the windows had melted and the curtains had collapsed. Heavy soot deposits were visible. There was soot on the carpet. There was a door closer which did not look as if it was connected[2911].
19. Room 14
Production 350 contained photographs showing an angular pattern of damage to the external face of the door. Internally the walls and ceiling in the area of the door were heavily smoke damaged. Heavy soot staining was visible on the bed. The curtains around the window had come away apparently as a result of the curtain fittings melting. There appeared to be evidence of heat damage to the wardrobes. The lamp shade was heat damaged, particularly on the side closest to the door and there was an angular pattern of blackening and damage to the walls in the area of the door. There was a door closer fitted to the bedroom door but the arm did not appear to be connected[2912].
20. Room 15
Production 349 contained photographs showing damage to the external face of the bedroom door. The damage moved upwards in an angular pattern from right to left. Internally the views of the room showed broken windows, heavy soot deposits on floors, window frames and other surfaces, and the en suite toilet area. There appeared to be plaster from the ceiling on the floor. The ceiling in the en suite toilet appeared to be cracked. The plastic vents above the windows had started to melt as had the curtain fittings. The curtains had collapsed to the floor. The lightshade was heat damaged. A door closer was fitted. There was a clean patch of carpet near to the door which possibly indicated an area where a door wedge had been in place[2913].
21. Room 47
Production 348 contains photographs showing the external face of the door to the toilet describing an angular pattern of damage and charring at the top, significant damage internally including melted fittings, and smoke and heat damage to the floor[2914].
22. Room 48
An interesting contrast was provided by production 347 which contains photographs of the door and interior of the shower room, room 48. An angular pattern of damage could not be decerned from the remains of the exterior face of the door. Although the white tiles were heavily discoloured, the light fittings were intact, and the ceiling was stained but relatively undamaged. Generally, the shower room was much less damaged than room 47 next door[2915].
Crucially, at this point in his evidence, during an intervention by the Court, Mr Thurley confirmed the Court's understanding that (i) room 7, the sluice room, and rooms 8 and 9 showed substantial evidence of fire damage; (ii) in rooms 10 and 11 there was very little damage; (iii) rooms 12, 13, 14, 15, and 47 showed significant damage, and (iv) room 48, the shower room, was relatively unaffected by fire inside[2916].
Bedroom Examination by David Robertson and Karen Walker or Clark
23. Mr Robertson has been a Forensic Scientist since 1992. He holds a BSc in chemistry, a Masters in Information Technology and is a member of the Royal Society of Chemistry. Over his career he has attended nearly 200 fire scenes in his capacity as a scene examiner. This has formed his particular specialty during his practice as a Forensic Scientist[2917].
24. Mrs Clark has been a Forensic Scientist for 16 years. She currently worksfor the Scottish Police Service Authority. She holds a BSc, and is a chartered chemist and member of the Royal Society of Chemistry. In February 2004 she worked alongside David Robertson during the scene examination following the fire at Rosepark. They subsequently produced reports of their findings[2918].
25. Part of the investigation undertaken by David Robertson and Karen Clark focused on the bedrooms in corridors 3 and 4. They examined the bedroom doors. It was possible to draw conclusions about whether doors were open or shut at the time of the fire by examining the damage to the doors. At Rosepark the fire developed in the corridor. The spread of the fire was affected by the door positions. Conclusions may be drawn about the position of a door in a fire because the surface of the door will be affected by heat and smoke in a different way depending on whether it was in an open position or closed[2919].
26. In general, where a room has suffered a greater degree of damage, this will tend to suggest that the door was open in the fire and there was, therefore, no physical barrier to slow down the spread of flame. Similarly evidence of greater smoke ingress into a room points to the door having been open. Closed doors slow down the spread of both fire and smoke[2920].
27. Normally, there will be more damage within a room located in the vicinity of the fire and whose door has been standing open[2921]
28. Heat will generally affect the upper more than the lower part of a room. If heat has penetrated a room through an open door one would expect to see heat damage at high level. As the temperature rises, combustion can occur within the room. This can happen by direct flames touching combustible materials inside, or by heat rising sufficiently to cause plastic to melt and drip onto flammable materials, or the air temperature can rise sufficiently that anything in the area of the heat will catch fire[2922].
29. David Robertson and Karen Clark inspected the bedrooms in corridors 3 and 4 on 4th February 2004[2923].
30. At the Inquiry the evidence about the position of the bedroom doors to these rooms was primarily given by David Robertson. He did so under reference to the photographs taken by David Thurley, the contemporary notes of his inspections (production 1797) and two reports. The first report, production 978, was a locus report prepared jointly by Mr Robertson and Mrs Clark (then Miss Walker) dated 23rd March 2004. The second report, dated 23rd October 2009, production 1795, was in the nature of an update following further consideration of scene examination photographs and the contemporary notes.
31. Mrs Clark prepared a second report, production 1796, dated 2nd November 2009 following further consideration of the scene examination photographs and contemporary notes.
32. Subject only to the particular instances noted below, Mrs Clark corroborated the Mr Robertson's conclusions about the positions of the bedroom doors at the time of the fire.
33. The scene examination by Mr Robertson and Mrs Clark concluded that the lowest and most severe damage was outside cupboard A2. In this location the carpet was badly burnt, bedroom doors, walls, and the wooden dado rail nearby were badly charred. Directional burn patterns indicated that cupboard A2 was the location of the fire[2924].
34. The scene examination by Mr Robertson and Mrs Clark also concluded that, in corridor 4, the fire damage gradually decreased in severity the further one moved from cupboard A2. Fire damage was very severe and low level at the turn in the corridor. There was severe and low level fire damage around rooms 9 and 11 (which may be explained by the location of the two foam filled chairs contributing to fuel loading and fire/smoke spread[2925]
35. The scene examination by Mr Robertson and Mrs Clark concluded that, generally, the closer the bedrooms with open doors were to the area of fire origin the lower the hot gas and smoke layer had reached. By contrast Mr Robertson's contemporary notes made no reference to heat horizons in rooms 10 and 11[2926]
36. Save as otherwise indicated (in respect of the rooms highlighted in paragraph 16 below), the final conclusions of the Forensic Scientists were in accordance with those expressed in the original locus report, production 978.
37. The original conclusions of the Forensic Scientists, expressed in the locus report (production 978), are as follows:
Open Doors
Room 5: ajar only - door closer not functional;
Room 7: wedged open - room unoccupied;
Room 8: wedged open - room unoccupied;
Room 9: open - door closer not functional;
Room 12: wedged open;
Room 13: open - door closer not functional;
Room 14: open - door closer not functional;
Room 15: wedged open;
Room 16: wedged open;
Room 17: wedged open;
Room 18: wedged open;
Room 20: wedged open;
Closed Doors
Room 4
Room 6
Room 10
Room 11
Room 19[2927]
38. The conclusions of the Forensic Scientists on the matter of door positions at the time of the fire were not challenged in cross-examination. The evidence of the Forensic Scientists to the Inquiry relative to relevant room doors is set out as follows:
39. Room 4:
Based on the appearance of the door in the photograph comprising production 332 Mr Robertson concluded that the door to room 4 was closed at the time of the fire. Mr Robertson's contemporary notes (taken down by Karen Walker[2928]) record that there was minimal fire damage in the room and it was concluded that the door to room 4 was closed[2929];
40. Room 5
There was more evidence of smoke and heat in room 5 than in room 4. However, the ceiling lightshade was noted to be unaffected by heat. By reference to the photographs in production 326 (particularly 326A, 326B and 326G), and his contemporary notes (production 1797, page 83), Mr Robertson concluded that the door to room 5 was either slightly ajar or it did not fit into its frame well thereby leaving a gap to permit the ingress of heat and smoke. (A third possibility was that the door was moved during the fire. There is, however, no evidence from fire officers of flames or significant heat in the corridor when they entered corridor 3)[2930].
41. Room 6
Production 1797, page 84, contains Mr Robertson's contemporary notes relative to room 6. They note a functioning door and the discovery of a wedge whose upper surface was soot stained but under the surface was clean.
Photograph 329A showed the outside of the door to room 6. It showed increased heat damage. There had been smoke build up on the door itself which related to the smoke patterns on the walls around the door. Photograph 329B showed heavier soot deposition in the room than was visible in room 4 (although, room 6 being closer to the fire than room 4, more smoke penetration was to be expected). The pattern of smoke staining above the door in photograph 329G was symmetrical, indicating that the smoke was pushed harder into this room compared with others.
Mr Robertson concluded that the door was closed at the time of the fire. That conclusion accorded with the contemporary notes[2931]
Under reference to page 7 of her report, production 1796, and the photographs in production 329, Mrs Clark revised her original opinion in the locus report that the door to room 6 was closed during the fire. She expressed the conclusion that room 6 was slightly ajar or may have been opened in the fire[2932]. The possibility that the door was slightly ajar is, however, supported by the evidence of Yvonne Carlyle who went to room 6 and moved the door to within 2 inches of being fully closed shortly before the fire alarm sounded[2933]
42. Room 20
Production 1797, page 81, contains Mr Robertson's contemporary notes relative to room 20. They record that there was a functional door closer, but that a wedge position was evident on the carpet. Mr Robertson concluded that the door to room 20 was wedged open. A mark on the carpet, shown in photograph 324B, was probably where the door stop had been. Photographs 324A and 330G showed much greater soot deposition than was present in room 4[2934].
43. Room 19
Production 1797, page 82, contains Mr Robertson's contemporary notes relative to room 19. They record that there was a functioning door closer and that Mr Robertson had concluded that the door was closed at the time of the fire. Photograph 327D showed the inside of the room in which there was more severe smoke staining than was seen in room 4. Under reference to photograph 327A, and in particular the appearance of the outer door (which was relatively clean compared with the door frame), Mr Robertson reconsidered the original opinion in the locus report that the door was closed. The door may in fact have been wedged open but the precise extent to which it was open could not be determined[2935].
Under reference to pages 5 and 6 of her report, production 1796, and the photographs in production 327, Mrs Clark also revised her original opinion in the locus report that the door to room 19 was closed during the fire.
If the door had been fully closed Mrs Clark would have expected the damage at the top of the outside of the door to have been similar to the damage to the adjacent paintwork.
Internally, towards the left hand wall, black smoke staining could be seen on the wall. This suggests that smoke had entered the room from the corridor[2936].
Mrs Clark concluded that the door was wedged partially open or ajar. By ajar she meant that the door was not fully closed over and left a small gap allowing ingress of smoke[2937].
Given the inconclusive opinion reached by Mr Robertson, but given also the fact that both witnesses appeared to depart from the view that the door was closed in the original locus report, it is submitted that Mrs Clark's opinion should probably prevail. The resulting conclusion is that the door was either ajar or wedged very slightly open.
44. Room 18
Photograph 325A showed the exterior of the door to this room. The condition of the door appeared to be better that the condition of the surrounding wall area. The surface of the door was relatively undamaged. Mr Robertson concluded that the door was, at least to some extent, open and not in contact with the door frame. Photograph 325G showed that, on the inside of the door, there was soot staining but no pressure marks.
Production 1797, page 86, contains Mr Robertson's contemporary notes relative to room 18. The notes record that there was a functional door closer. Accordingly, for it to have been open the door would require to have been wedged[2938].
45. Room 17
Production 1797, page 89, contains Mr Robertson's contemporary notes relative to room 17. Mr Robertson examined the door closer and found it to be in working order. A wedge mark on the carpet indicated that the door had been held open in order to overcome the effect of the closer.
Photograph 341A shows the outside of the bedroom door to room 17. The fire damage to the door evinced a clear angular pattern on the door's surface. If the door had been closed the line of the fire damage would have been horizontal rather than diagonal. The reason for this is that heat and smoke rise by convection, building up at the ceiling and gradually moving down in a horizontal heat horizon. An open door changes this pattern. Heat and smoke will wrap round the doorway, move into the room and rise within the room. Photograph 341B shows the inside of the bedroom door. Again there is an angular pattern on the door.
The fire damage inside the room was greater than that seen in other rooms. Mr Robertson noted thermal cracking to the windows which appeared to have failed under heat and pressure. There as evidence of significant heat penetration. If the bedroom door had been closed there would have been less damage and a different distribution of heat and smoke
Mr Robertson concluded that the door had been wedged open at the time of the fire[2939].
46. Room 16
Production 1797, page 90, contains Mr Robertson's contemporary notes relative to room 16. The door was noted to have been fully open with a wedge protection mark on the carpet.
Photograph 340A shows the view from the corridor. There is an angular pattern of damage on the front face of the door. Severe damage is visible within the room, including cracked windows, spalling to the ceiling caused by heat and pressure to the plasterwork, and cracks in the ceiling[2940]. The degree of damage is consistent with the door having been open at the time of the fire.
Damage extended to the ensuite toilet off room 16 with evidence of significant soot staining and discolouration. A fitting on the wall backing onto cupboard A2 appeared to have suffered greater heat damage than fittings on the ceiling[2941].
47. Room 7
Room 7 was unoccupied on the night of the fire. However, an inspection of the room is helpful to an analysis of which doors were open at the time of the fire.
Production 1797, page 91, contains Mr Robertson's contemporary notes relative to room 7. Photographs of the room are contained in production 338. The door to room 7 had a functional door closer.
Photograph 338A shows the door leading into room 7. It has suffered from fire damage. The pattern of damage to the door is angular. This suggests that the door was open at the time of the fire.
Internally thermal fractures were noted at the windows. There was again a large area of spalling to the ceiling. Photograph 338B showed extensive heat damage. The bed cover had started to melt. There was widespread soot deposition. The carpet appeared to have been burnt. This indicated that the heat had descended to floor level. The presence of heat damage at least at low level was consistent with the door being open at the time of the fire. Moreover, the contemporary notes record the finding of the top of an aerosol can on the floor of room 7. There was no evidence of aerosols having been stored in the room such as might account for its presence.
Mr Robertson's conclusion at the time of inspection was that the door was wedged fully open at the time of the fire. This conclusion was confirmed in Mr Robertson's report, production 1795, page 11[2942].
48. Room 8
Room 8 was unoccupied on the night of the fire.
Production 1797, page 93, contains Mr Robertson's contemporary notes relative to room 8. Photographs of the room are contained in production 339. The door to room 8 had a functional door closer.
The notes record a heat horizon at about 1 metre above floor level and the smoke horizon at floor level. The conclusion Mr Robertson reached at the time of inspection was that the door was wedged wide open at the time of the fire.
Photograph 339B showed a view of room 8 from the corridor. There was, again, an angular pattern of fire damage to the door. Photograph 339F showed the interior of the room which was very severely affected by fire and smoke. Mr Robertson drew attention to the damage to a paper towel dispenser and low level wall sockets, thermal fractures to the windows (as distinct from mechanical breakage of glass - also visible - and probably the result of Fire Brigade ventilation work) and the fact that the curtains had fallen to the floor.
Mr Robertson's conclusion that the door was wide open at the time of the fire was confirmed in his report, production 1795, page 13, and examination of the photographs in production 339[2943].
49. Room 9
Production 1797, page 94, contains Mr Robertson's contemporary notes relative to room 9. The door was noted to have been slightly open at the time of the fire. There were thermal fractures to the windows which suggested that the door was open. Photograph 355I, a view of the inside of room 9 looking towards the door, reveals evidence of significant fire, heat and smoke within the room. In the notes the heat horizon was recorded as 2 metres above floor level.
In photograph 355A an angular pattern of fire damage is visible on the wall inside the room extending in an upward direction.
It was possible to draw conclusions from a comparison of the conditions in neighbouring rooms. A comparison with the conditions in room 10 led Mr Robertson to conclude that the door to room 9 cannot have been closed at the time of the fire[2944].
Mrs Clark was of the opinion that the door to room 9 must have been slightly open or slightly ajar to allow the extent of heat damage apparent from the photographs of room 9[2945]
50. Room 10
Photograph 354C shows the interior of room 10. There is far less fire damage in room 10 than in room 9 (pointing to the conclusion that the door to room 9 was indeed open).
Production 1797, page 96, contains Mr Robertson's contemporary notes relating to room 10. There was noted to be a slight gap at the top of the door where it was not flush with the frame. The door closer was functional. A wedge was found but not in use. The windows were closed and the glazing was undamaged (unlike in room 9). There was no evidence of heat damage except just inside the door. In the rest of the room there was no heat damage and only light soot.
On page 16 of his report, production 1795, Mr Robertson expressed the opinion that the door to room 10 was closed at the time of the fire. The interior of the room was in good condition compared with room 9, where the door was open[2946].
51. Room 11
Production 1797, page 97, contains Mr Robertson's contemporary notes relative to room 11. The door closer was functional. A wedge was found but it was not in use. The windows were intact and closed. The damage in room 11 was less than in those rooms at the corner (probably a reference to rooms 7, 8 and 9).
Inside the room there was some soot deposition[2947]. The light fittings were unaffected by heat and there was no apparent evidence of significant smoke or soot[2948]. There was some evidence of heat penetrating through the door, to a greater extent than in room 10, but the burning is localized to the door and immediately surrounding area.
On page 18 of his report, production 1795, Mr Robertson expressed the opinion that the door to room 11 was closed at the time of the fire[2949].
Mr Robertson subsequently expressed the opinion that the door to room 47 (the toilet opposite room 11) was open at the time of the fire[2950]. In photograph 348G the door to room 11 was visible. Mr Robertson pointed out that the damage within room 47 was significantly greater than the damage in room 11, the door to which he had concluded was closed[2951].
52. Room 12
Production 1797, page 100, contains Mr Robertson's contemporary notes relative to room 12.
The room was considered to be further away from the fire because the damage in the corridor was not as severe as it had been in the area of cupboard A2. The heat horizon appeared to be rising. Heat was evident at, and above, the dado rail.
The door closer was noted to have been functional but it was concluded that the door was almost fully open. There was a lot of fire and smoke damage within the room. Photograph 352G exhibited a pattern of heat damage around and above the door which was consistent with the door being fully open. There was fire damage to the lampshade and ceiling (in contrast to the room next door). The upper, but not the lower, window panes were cracked.
Photograph 352K disclosed a line on the carpet at the bottom of the door which, in Mr Robertson's view, showed that the door was wedged open at the time of the fire.
Mr Robertson identified label 790 as a battery operated clock which had been removed from the wall of room 12 by the mirror. The clock appeared to have stopped shortly before 0440 hours when the plastic face melted and stopped the hands from moving. This evidence was consistent with there having been a heat horizon within the room at the level of the clock. The room would have been affected by smoke.
On page 20 of his report, production 1795, Mr Robertson expressed the opinion that the door to room 12 was held open with a wedge at the time of the fire[2952].
53. Room 13
An examination of photograph 351A shows the door to room 13 and the fire door at the end of corridor 4b. The difference in fire damage presentation relative to each door is instructive. The bedroom door had an angular pattern of damage. The fire door had a horizontal pattern of damage. The conclusions Mr Robertson drew from the appearance of the two doors was that (i) the bedroom door must have been open, and (ii) the fire door must have been closed.
Production, 1797, page 102, contains Mr Robertson's contemporary notes relative to room 13. The door closer was not functional[2953]. Compared with rooms 10 and 11, room 13 had suffered smoke and heat damage throughout. The heat was noted to have descended about 600mm from the ceiling and had caused the curtains to fall when the fasteners had melted. The windows were affected by thermal cracking[2954].
Mr Robertson's original conclusion, confirmed in his report, production 1795, at pages 21-22, was that the door to room 13 was open at the time of the fire[2955].
54. Room 14
Production 1797, page 101, contains Mr Robertson's contemporary notes relative to room 14.
Standing outside room 14 where photograph 887H1 was taken at the end of corridor 4b, it was noticeable that the wall underneath the dado rail was relatively unaffected by fire. Mr Robertson considered that this showed that this was as far as one could get from the seat of the fire without leaving the corridor altogether.
Photograph 350A showed the door to room 14 from the corridor. The burning on the door described an angular pattern[2956]. The angular pattern is the most reliable indicator that the door was open at the time of the fire, a conclusion which was supported by an examination of the room itself which was quite badly damaged by heat and smoke.
In the contemporary notes Mr Robertson recorded that there was high level heat damage to about 600mm from the ceiling, and the lampshade was slightly damaged.
In his report, production 1795, at pages 20-21, Mr Robertson concluded that the corridor outside room 14 was less damaged than outside room12. One may, therefore, conclude that it was further from the fire of origin. The door closer was not functional. The door to room 14 was open at the time of the fire[2957].
55. Room 15
Production 1797, page 99, contains Mr Robertson's contemporary notes relative to room 15. Mr Robertson recorded his conclusion that the door was wide open at the time of the fire.
There was a functional door closer. A black plastic wedge was found within the room. Photographs 349A and 349B showed the door to room 15 from the corridor. The burning on the door again described an angular pattern. This supported the conclusion that the door was open at the time of the fire. The inner panes of the windows were noted to be thermally fractured. Soot deposition in room 15 and the en suite toilet was consistent with the door having been open.
Production 1795, at page 19, contains Mr Robertson's conclusion that the door was wedged almost completely open at the time of the fire.
The conditions in rooms 13, 14, and 15 were all worse than in room 11 (which had a closed door)[2958].
56. Room 47
Production 1797, page 98, contains Mr Robertson's contemporary notes relative to the toilet, room 47. Mr Robertson recorded his conclusion that the door was almost fully open at the time of the fire.
Photograph 348A showed the door to room 47. By comparison with photograph 347A (door to the shower room, room 48) the burning on the door described an angular pattern. That pattern did not appear on the door to room 48.
The damage to room 47, which is seen in photograph 348E, was significantly greater than the damage to room 48. Photograph 348G showed that the floor had been exposed to heat damage, and the door was damaged at its leading edge almost to ground level.
Photograph 348G also showed the entrance to room 11 on the opposite side of the corridor. The damage in room 47 was significantly greater than the damage in room 11 (which had a closed door).
Production 1795, at page 17, contains Mr Robertson's conclusion that the door was open at the time of the fire[2959].
57. Room 48
Production 1797, page 95, contains Mr Robertson's contemporary notes relative to the shower room, room 48. Mr Robertson recorded his conclusion that the door was partly open.
The door must, however, have provided some protection because the inside of the shower room was less damaged than the corridor outside[2960]. Moreover, the damage to the exterior surface of the door did not describe the angular pattern shown on the door to the toilet, room 47[2961].
The appearance of the ceiling, and relative damage to fittings at high and low lever, supported the conclusion that the heat horizon was just below the level of the ceiling[2962].
58. In light of the evidence given by the Forensic Scientists to the Inquiry the only modifications required to the conclusions in the locus report, production 978, are (i) that room 6 should be considered to have been slightly ajar, and (ii) that room 19 should be considered to have been ajar or wedged slightly open.
59. On 19th February 2004 Jean Edgar, a health and safety inspector with HM Health & Safety Executive, inspected Rosepark and made a report of her findings in relation to the position and condition of certain bedroom doors. The results of her findings, which reflect (in relation to the rooms she inspected) the photographic record just described, were included within production 1142 (under cover of a letter from the Health & Safety Executive to the Procurator Fiscal, Hamilton, dated 22 September 2004). The findings were spoken to by Ms Edgar[2963] and may be summarized as follows:
60. Room 4: Door closer fitted and working; door not fitting in frame;
61. Room 5: Door closer disabled (connecting arm disconnected);
62. Room 6: Door closer fitted and working;
63. Room 7: Door closer fitted and working;
64. Room 8: Door closer fitted and working (badly damaged by fire);
65. Room 9: No door closer fitted;
66. Room 10: Door closer fitted and working;
67. Room 11: Door closer fitted and working;
68. Room 12: Door closer fitted;
69. Room 13: Door closer disabled;
70. Room 14: Door closer disabled;
71. Room 15: Door closer fitted and working;
72. Room 16: Door closer fitted and working;
73. Room 17: Door closer fitted and working;
74. Room 18: Door closer fitted and working;
75. Room 19: Door closer fitted and working;
76. Room 20: Door closer fitted and working;
77. Room 23: No door closer fitted;
78. Room 24: Door closer disabled;
79. Room 37: No door closer fitted; door did not fit;
80. Room 25: No door closer fitted; screw holes for attaching closer to the door visible;
81. Room 26: Door closer fitted and working;
82. Room 27: No door closer fitted; screw holes visible;
83. Room 28: Door closer fitted and working;
84. Room 29: Door closer removed; poor catch and door slips open, Ms Edgar commented that this could easily allow smoke ingress through the gap[2964].
Conclusions
85. The evidence of Jill Cummings and Jean Edgar confirms the existence of a practice involving leaving bedroom doors open. Where other evidence points to bedroom doors in corridors 3 and 4 having been open on the night of the fire, such a situation would not represent a departure from existing practice.
86. The evidence of David Robertson and Karen Clark, based on their scene examination and on the photographs taken by David Thurley, provides reliable and convincing evidence that the doors which they conclude to have been open were indeed open. Their evidence is, it is submitted, particularly convincing in relation to the rooms in corridor 4. This is because the patterns of fire damage were so clearly pronounced.
87. The fact that rooms 10 and 11 lay closer to the seat of the fire than other rooms in corridor 4b (particularly rooms 12, 13, and 14), yet suffered less damage, clearly supports the conclusion that the doors to these two rooms were closed at the time of the fire. Such a conclusion is consistent with the evidence of Yvonne Carlyle as to the preferences of Robina Burns and Isabella MacLeod at the time of the fire[2965], and also, in the case of Robina Burns, the evidence of her daughter Agnes Crawford[2966].
88. In corridor 3 the conclusions of the forensic scientists were more cautious in respect of rooms 5, 6, and 19. The evidence of Professor Purser resolves the position in respect of those rooms. Each was partially open.
Summary of positions of bedroom doors
In the circumstances it is submitted that the positions of the bedroom doors in corridors 3 and 4 may be summarised as follows:
Room 4: Closed
Room 5: Partially open
Room 6: Partially open
Room 9: Slightly open
Room 10: Closed
Room 11: Closed
Room 12: Open
Room 13: Open
Room 14: Open
Room 15: Open
Room 16: Open
Room 17: Open
Room 18: Open
Room 19: Partially open
Room 20: Open
CHAPTER 30 (formerly 25): THE LOCATION OF THE FIRE
This chapter addresses the determination which the Sheriff Principal is required to make in terms of section 6(1)(a) of the 1976 Act, namely: where any accident resulting in the death took place.
The Crown's proposed determination is as follows:-
1. Each of the deaths resulted from a fire which occurred at Rosepark Care Home on 31 January 2004.
2. The fire started low down on the south side of the cupboard known as cupboard A2 in the upper corridor of Rosepark Care Home.
Proposed determination, para. 1: Each of the deaths resulted from a fire which occurred at Rosepark Care Home on 31 January 2004.
1. Each of the deceased died as a result of the inhalation of smoke and toxic gases or of the sequelae of such inhalation: see Chapter 42 (formerly 36). There can be no doubt that the inhalation of smoke and toxic gases in each case occurred as a result of the fire which occurred at Rosepark Care Home on 31 January 2004.
Proposed determination, para. 2: The fire started on the south side of the cupboard known as cupboard A2 in the upper corridor of Rosepark Care Home at low level.
General
2. The evidence supporting this determination may be approached in the following stages.
2.1 The fire occurred in corridor 4 on the upper floor at Rosepark Care Home.
2.2 The fire started in cupboard A2.
2.3 The fire started at the southern side of cupboard A2 at low level.
The fire occurred in corridor 4 on the upper floor at Rosepark Care Home
3. The fire occurred in corridor 4 on the upper floor at Rosepark.
3.1 After the fire alarm sounded, staff found no evidence of fire in corridor 1 or on the lower floor.
3.2 During the early stages of the incident, staff passed through the central stairwell without noticing anything untoward.
3.3 Mr. Norton and Miss Carlyle were able to travel up the south western stair to or almost to the door into corridor 4.
3.4 During the rescue phase of the incident, the visibility due to smoke logging was worst in corridor 4[2967]. There was a rise in temperature on passing from the liftshaft into corridor 3[2968], and a further rise in temperature on passing from corridor 3 into corridor 4[2969]. The only visible evidence of fire was in corridor 4[2970].
3.5 On examination of the Home following the incident corridor 4 was found to exhibit extensive damage due to the effects of fire[2971], By contrast:-
3.5.1 No part of the lower floor was found to have been involved in the incident[2972].
3.5.2 The upper floor from the main entrance to the liftshaft was not visibly affected by fire[2973].
3.5.3 No smoke contamination was found in the liftshaft itself.
3.5.4 Only moderate amounts of smoke were found to have contaminated the stairwell at the south-west corner of the upper floor[2974].
3.5.5 In the roofspace, there was an area of charring below the insulation but immediately above cupboard A2. Otherwise, the smoke damage in the roofspace was consistent with smoke ingress through the roof access from corridor 4.
3.5.6 Only moderate amounts of smoke had contaminated corridor 3[2975]. And in corridor 3 an approximately V shaped smoke pattern extended from about mid-height of the corridor 3/4 firedoor and plastic components of an emergency light fitting and an emergency exit sign which had been mounted above the door had softened and sagged[2976], consistent with the ingress of smoke and heat from corridor 4 into corridor 3.
The fire started in cupboard A2
4. The location of origin of a fire may be identified by examining the patterns of fire damage[2977]. Fires typically spread as follows. Heat from a fire will rise vertically until it reaches an obstruction such as a ceiling. Hot combustion products and flame will then generally spread in all directions, unless there is a physical barrier to prevent them spreading further. In a space such as an open corridor, any fire that starts part way along the corridor will generally spread relatively evenly in each direction from the point of origin, until an obstruction such as a wall is met. Furthermore, as the flames and hot combustion products impinge on other combustible materials along such a corridor, these materials will ignite and become involved in the fire, thereby assisting the fire to spread further[2978].
5. It follows:-
5.1 That the area of greatest fire damage will give an indication where a fire started[2979];
5.2 That, as a general rule, the lowest point of charring will correspond to the place where the fire started[2980]; and
5.3 That in a space like a corridor, the area of fire origin will generally be towards the centre of the area of burning, unless there is some other factor, such as the availability of fuel, drafts or a physical barrier, that would encourage the fire to spread more readily in one particular direction[2981].
6. The only significant low level fire damage at Rosepark was in corridor 4[2982]. Within corridor 4, the main area of fire damage extended from the north end of cupboard A2 to approximately the location of chair 1 outside room 15[2983]. Throughout this area, charring extended from floor level to ceiling height[2984]. In corridor 4B, the lower edge of the area of charring rose from floor level at or about the doorway of room 12 and increased in height from the floor as one proceeded west[2985]. In corridor 4A the floor to ceiling char pattern extended from the corner northward to the north side of cupboard A2. From there the base of the char pattern rose until, at the corridor 3/4 firedoor, it was at about waist height[2986]. Although some of the rooms off corridor 4 exhibited severe smoke contamination and the effects of high level heat, the severity of the damage to all of the rooms was less than that within the corridor itself[2987].
7. Within the area of greatest fire damage there were areas of more severe localized burning as follows[2988].
7.1 The interior of cupboard A2 had been subjected to a sustained and extensive fire attack[2989]: see below.
7.2 Chair C2, located opposite the door to room 9, was significantly damaged. The majority of the foam padding of this chair had been burned[2990]. This chair exhibited a relatively even pattern of fire damage[2991].
7.3 Chair C1 was also significantly fire damaged, but it exhibited a directional pattern of fire attack, consistent with the effects of fire spreading westwards[2992].
In addition, combustible components of a wheelchair that had been parked in the vicinity of Chair C1, and particularly the handles, had burned and dropped to the floor, resulting in the floor being penetrated by fire[2993].
8. Cupboard A2 had been subjected to a sustained and extensive attack by fire in which materials over the full height of the cupboard had been burned[2994]. Within the cupboard the lowest point of appreciable charring and the most severe fire damage was to the south side of the cupboard, that is to the left hand side looking at the cupboard from outside [2995]. At this location, the charring extended from near floor level, from which it rose in an approximately V-shaped pattern within the cupboard. This area of more severe fire damage was behind the southern door of the cupboard, which was closed[2996]. Relatively little floor level damage had been sustained by items to the north of this point. Items on all of the shelves above had been attacked by fire with slightly more severe charring being observed to the south of each shelf[2997]. The more severe fire damage within cupboard A2 was to the south side of the cupboard,[2998]. The contents of the smaller upper cupboard had been subjected to relatively less severe attack by fire than the remainder of the main cupboard. This was consistent with the doors of the smaller cupboard being closed during at least part of the incident[2999] (although at some point during the fire the southern door of the smaller cupboard had become detached and come to rest in the location shown in Photograph 18 (p. 142) of Pro 1454)[3000].
9. Protection patterns found on the carpet after the fire justify the conclusion that the northern door of cupboard A2 was in two different positions during the course of the fire: (i) slightly ajar; and (ii) fully open. This evidence would be consistent with the door having been slightly ajar - in the position shown in photograph 16 (p. 140) of Pro 1454 - when the fire started, but having been blown open in the course of the fire by an overpressure[3001].
10. The patterns of fire damage support the proposition that the fire started within cupboard A2 and spread into the corridor rather than the other way round for the following reasons.
10.1 A fire starting in the corridor would initially have spread along the corridor at high level. As such a fire developed the base of the flames and hot combustion products would have descended from ceiling level and could have spread through any opening, such as the ajar cupboard door. But the pattern of damage seen within and outside the cupboard was less consistent with such a pattern than with a fire starting in the cupboard and spreading out into the corridor.
10.2 The only way that a V shaped pattern of damage on the left hand side of the cupboard could be explained consistently with a fire spreading into the cupboard from the corridor would have been by something within the cupboard catching fire and falling. But, on that hypothesis, one would have expected a smaller extent of damage down the south side of the cupboard than was in fact observed[3002].
10.3 It would be difficult to reconcile a pattern of fire development moving from the corridor into the cupboard with the relative absence of damage to the contents of the small inner cupboard. There was no top on this cupboard and any fire spreading into the cupboard at high level and down could have been expected to attack the contents of this cupboard before it attacked the other contents of the main cupboard.
10.4 Had the fire spread into the cupboard from the corridor, it would also have been likely to spread into adjacent bedrooms, the doors of which were open. While the difference in the nature of the damage between the cupboard and bedrooms might be explained in part by the presence of fuels, it is more consistent with the effects of a fire spreading from the cupboard into the corridor, than with a fire spreading in the opposite direction[3003].
10.5 A fire developing within the relatively confined space of the cupboard would be expected to result in a pressure rise such as would force the fire out into the corridor. By contrast, while a fire developing in the larger space of the corridor would result in a pressure rise, the effect would be less. It follows that any fire spread into the cupboard from the corridor would probably have been comparatively slow compared with fire spread in the opposite direction[3004].
10.6 The evidence that the northern door of the cupboard was blown open during the fire is more consistent with a fire developing within the cupboard. If the fire had spread from the corridor into the cupboard it would have been likely that the tops of the doors would have burnt away by the time that the aerosols became involved in the fire, such that it would be less likely that the northern door would have been blown open[3005]. It is also likely that, even if the door had been blown open, the carpet in the corridor would have been burnt to such an extent that there would not have been any discernible protection pattern whereas such a pattern was visible[3006]. Furthermore the outer face of the northern door had been charred to a lesser extent than the inner face of the door[3007] which would appear at least be consistent with a fire spreading from the inside of the cupboard out.
10.7 The evidence of arcing activity attributable to the effects of fire is more consistent with a fire developing within the cupboard than with a fire spreading into the cupboard from the corridor. Fire spreading into the cupboard from outside - probably have been at high level - would have been likely to damage the main power supply cable to the distribution board sufficiently for it to fail and disconnect the electricity supply to the board before any electrical arcing activity would have been seen within the board[3008].
10.8 When the insulation in Section 7 of the roofspace directly above cupboard A2 was pulled to one side, there was visible charring concentrated on the ceiling area of the cupboard and immediate vicinity. This may be seen in Photograph 39 (p. 163) of Pro 1454. Smoke and fire had spread into the roofspace through the cable penetrations for the cables which were routed to the distribution board in cupboard A2 through the wall void between cupboards A1 and A2. This charring is consistent with the fire starting within the cupboard. If the fire had started elsewhere one would have expected it to attack the ceiling in that area in preference to within the cupboard[3009].
11. The areas of particularly severe localized burning at Chairs C1 and C2 may be explained by the significant quantity of combustible materials contained within these chairs, which would be expected to generate pockets of relatively greater fire damage[3010], distorting any fire patterns resulting from the initial fire[3011]. The same would be true, though to a lesser extent, of the table outside room 9[3012]. The involvement in the fire of chair C2 would also explain why the wallpaper to the west side of that table had sustained more damage than the wallpaper to the east, consistent with a fire attack from the west[3013].
12. There was relatively little fire damage north of cupboard A2. For this reason, Mr. Mortimore did not immediately accept that cupboard A2 was the location of origin of the fire. However, the relative levels of damage north and south of the cupboard may be explained by reference to the evidence that the north door of cupboard A2 had blown open. That door would thereafter have tended to form a barrier which restricted the spread of fire in a northerly direction from the cupboard[3014].
13. The proposition that the fire started within cupboard A2, which is derived from the patterns of damage, is supported by the reconstruction work undertaken by the BRE. Test One undertaken by the BRE (in which, of course, the fire was ignited at low level to the south side of cupboard A2 in the reconstruction) exhibited a similar pattern of damage to that found at Rosepark[3015]. In particular, as in the actual incident, there was relatively little fire damage north of cupboard A2, apparently because the north door swung open during the course of the reconstruction. And, as in the actual incident, chairs C2 and C1 were involved in the development of the fire.
The location of fire within cupboard A2
14. The seat of the fire (by which is meant the initial point of flaming combustion, something which may be different from the source of ignition) was somewhere along the southern wall of the cupboard below the distribution box[3016]. The pattern of burning within cupboard A2 indicated that the fire was more likely to have started on the south side of the cupboard than on the north side and at the bottom of the cupboard.[3017]. The more severe fire damage within cupboard A2 was to the south side of the cupboard, that is to the left hand side looking at the cupboard from outside[3018]. At this location, the charring extended from near floor level, from which it rose in an approximately V-shaped pattern within the cupboard. This area of more severe fire damage was behind the southern door of the cupboard, which was closed[3019].
15. Some support for the proposition that the fire started low down on the left hand side of the cupboard may be obtained from the reconstruction tests undertaken by the HSL and the BRE. In each of these tests a fire was set in the bottom left hand side of the cupboard.
(a) HSL. There was a degree of similarity between the fire damage in the test cupboard to that observed at Rosepark. This tended to support the view that the fire had started in the back corner or thereabouts of the cupboard and certainly on the left hand side of the cupboard[3020].
(b) BRE, Test One. As at Rosepark itself, there was severe damage to the left hand side of the cupboard and less damage towards the right hand side[3021]. The BRE work tended to confirm that the fire (as opposed to the source of ignition) started in the bottom left hand side of the cupboard[3022].
16. Further, work done by the HSL leads to the conclusion that the initial fire is more likely to have occurred outside the distribution board than to have started inside the board and spread to the cupboard (although this does not necessarily preclude the possibility that sparks from the distribution board ignited combustible materials inside the cupboard)[3023]. In particular:-
16.1 Tests on the plastic components within the Board indicated the difficulty of sustaining combustion with any of those components.
16.2 Busbar temperature tests established that the busbar would not heat up even on overcurrent to a temperature anywhere near that required to ignite the plastic components within the distributjon board.
16.3 Tests in which fires were set inside a distributjon board showed that it was difficult to involve fuels within the distribution board in a fire.
16.4 A test involving a replica cupboard indicated that patterns of damage not dissimilar to those in the incident cupboard could be generated by a fire starting beneath the distribution board.
The glow-wire tests
17. These tests were designed to ascertain how the various plastic components within the distribution board responded to temperature. A U-shaped wire, the temperature of which could be progressively raised, was pressed against the various components[3024]. The results of the glow-wire tests were as follow.
Plastic front covers
17.1 At about 346 degrees Centigrade, these covers (which were probably not in situ in any event) slightly melted; at 560 degrees the wire broke through the cover; at 749 degrees there was rapid evolution of fumes but no flaming; at 840 degrees there was immediate flaming which did not extinguish when the wire was removed[3025].
MCB blanking plug
17.2 At about 659 degrees Centigrade the blanking plug melted; at 764 degrees there was rapid flaming and the wire penetrated the component; and at about 800 degrees, there was flaming which did not extinguish when the wire was removed and the plastic was very mobile and flaming drops fell down inside the unit[3026].
Isolator switch
17.3 At about 663 degrees Centigrade there was copious flaming at the switch lever; at about 700 degrees copious fumes were emitted; at about 751 degrees, the switch body became incorporated in the flaming, burning drops fell away and were extinguished, and the flaming was almost self-propagating[3027].
Merlin Gerin MCB
17.4 At temperatures between 556 degrees and 674 degrees Centigrade, the component melted and the wire penetrated into its body; at about 767 degrees, the plastic caught fire and flamed for about 10 seconds but there were no drips; the flame was not self-propagating[3028].
MEM MCB
17.5 At about 754 degrees Centigrade, the switch lever flamed immediately but the MCB body showed little penetration up to 967 degrees Centigrade, there was little smoke, no charring and no ignition[3029].
Busbar cover
17.6 Just above 200 degrees Centigrade, the busbar cover exhibited slight melting; up to 300 degrees there was slight penetration of the component by the wire; at 564 degrees full penetration was obtained; at about 650 degrees the component melted quickly; at 760 degrees there were copious fumes but no flaming; even at 954 degrees there was no flaming of the component although the plastic label attached to it burned when the glow wire was in contact with it; at 1068 degrees there was flaming and penetration but the flaming was not self-propagating[3030].
Busbar temperature tests
18. A test was undertaken to ascertain the temperatures which could be generated at the busbar at normal and overload currents. With a current of 83 amps, after six hours the temperature of the busbar reached a steady-state of 27.7 degrees Centigrade. Thereafter if a current of 102 amps (an overload current) was passed through the busbar for a further 14 hours, the busbar reached a steady state temperature of 36.5 degrees Centigrade. The conclusion was that the temperatures which could be generated within the busbar were insufficient to cause thermal degradation of PVC and were nowhere near the temperatures identified in the glow wire tests as the temperatures required to cause changes in the various plastic components within the unit[3031].
Flame impingement tests
19. A Merlin Gerin MCB and a MEM MCB were mounted next to each other and subjected to flame from two Number 7 cribs. The Merlin Gerin MCB was significantly more damaged than the MEM MCB[3032].
Fires inside a distribution board
20. Two tests were undertaken by HSL to investigate the potential for fires starting within the distribution board to grow and spread from there into the cupboard.
Test 1
20.1. A small metal tray was constructed and fitted in the base of the distribution board casing. This was filled with diesel fuel (gas oil) and a small quantity of wood wool added to act as a wick. The fuel was lit by means of an electric match. The burning time of the igniter was extended by building the electric match into a bundle of five conventional matches tied together to create single unit.
20.2. When the igniter was fired, the fuel in the tray ignited readily and flames could be seen through small gaps in the casing of the board near the isolator switch. The tray fire showed no tendency to self-extinguish through lack of oxygen and smoke was seen to escape from the distribution board at the rear and other orifices where electric cables passed through the plasterboard wall. After 52 seconds the latch on the cover for the upper row of MCBs opened and after 3 minutes and 4 seconds blackening above the lower latch was observed. At 4 minutes and 14 seconds the levels of emitted smoke were seen to increase and after 4 minutes and 37 seconds the growing fire broke out of the right hand side of the box. A few seconds later, at 4 minutes 40 seconds, the plastic MCB covers began to soften and sag allowing flames to break out through the front of the unit.
20.3. The fire was then extinguished. The damage within the unit was confined to the upper region only. The upper parts were smoke blackened and some of the insulation to the upper row of MCBs had been partly consumed, but the MCBs were largely untouched by the effects of fire. On the lower busbar the cables leaving the MCBs seemed largely undamaged. None of the MCBs had tripped out. Externally, the plastic covers had sustained significant damage.
20.4. This trial produced a fire which was unrealistically large and long-lived. The ignition source dominated the combustion. The components in the board itself did not ignite and burn. The damage withi the board was essentially caused by the original ignition source. The experiment did demonstrate, however, that there was sufficient oxygen within the board to sustain a significant fire[3033].
Test 2
20.5. In Test 2, the initiating fire comprised a pad of Kaewool (a mineral wool blanket), about 2 cm square, soaked in diesel fuel.
20.6. The damage largely comprised smoke damage to the upper parts of the box. The fire did not spread significantly within the components of the board. It died out reasonably quickly. There was no self-sustaining fire within the board[3034].
Conclusions
20.7. These tests did not replicate the patterns and levels of damage seen inside the incident distribution board and it was only possible to involve fuels within the board itself with great difficulty. One may conclude that, although any fire starting inside the unit would burn to completion without restriction of ventilation, it is unlikely that the fire initially started inside the unit and broke out of it[3035].
Cupboard tests
21. A replica cupboard was constructed, to the dimensions of the incident cupboard. The arrangement of shelves within the cupboard was reproduced and the contents of the cupboard were, so far as possible, replicated[3036].
22. There were two significant differences between the replica and the real situation:-
22.1 No aerosols were included amongst the contents of the cupboard[3037].
22.2. The cupboard doors were left fully open during the test[3038].
23. The distribution board was connected to the mains supply. The outputs from a MEM and Merlin Gerin MCB were connected to light bulbs so that the tripping of those two circuit breakers could be identified[3039].
24. A fire was ignited beneath the distribution board using two Number 7 cribs and a small amount of accelerant[3040].
25. Notwithstanding the differences in the setup, this test produced internal and external damage to the distribution board which was strongly reminiscent of the damage seen on the incident distribution board, although the internal parts were not as badly affected and the heating effects were assymetrical[3041].
26. The flames were substantially in contact with the distribution board at about 14 minutes after ignition[3042]. As the fire developed, the flames were greater in vertical extent towards the back of the cupboard. However, if the lefthand door had been shut, one would expect flames also to play up the front left hand corner as well[3043]. This would have resulted in faster development of the fire[3044].
CHAPTER 31 (formerly 26): DEVELOPMENT OF THE FIRE: THE BRE WORK
Introduction
1. The Building Research Establishment carried out a series of reconstruction experiments with a view to investigating and learning lessons from the fire at Rosepark. Of most importance from the point of the view of understanding the development of the fire during the actual incident was the reconstruction undertaken on 17 June 2004, reported in Pro 1458 as Test 1.
The test rig
2. Test 1 involved a full-scale reconstruction of corridors 3 and 4 and the adjoining rooms[3045]. Care was taken to replicate the physical layout of the relevant part of the building and the potential fuels available. For example:
2.1. The reconstruction was built (both as to layout and as to the nature of the construction) in accordance with the building warrant drawings approved for the alteration to produce en suite bathrooms in 1993[3046].
2.2. The types of doors, nature of wall linings and other materials were based on information provided by Strathclyde Police[3047]; indeed efforts were made to source the exact materials if that was possible[3048]. In particular, the bedroom doors were ordinary hollow core doors and not fire rated doors[3049]..
2.3. Chairs of general similar construction and materials as Crown Labels 768 and 773 (the upholstered chairs) which were in the corridor at Rosepark were used[3050].
2.4. Of the bedroom doors in corridor 4 only doors 10 and 11 were closed. Of those in corridor 3, the doors to rooms 4, 6 and 19 were closed[3051].
2.5. Closed doors were installed with gaps based on measurements taken on the lower floor at Rosepark[3052].
2.6. The doors of cupboard A2 were placed in the positions derived from the forensic investigation[3053].
3. Cupboard A2 was stocked in a manner as close to the cupboard at Rosepark as possible, based on the information which was available from statements and from the forensic examination of the cupboard[3054]. Owing to the mis-labelling of one bag of recoveries, a quantity of aerosols was placed on shelf 3 which should have been on shelf 5.
4. Instrumentation was placed so as to record temperature at various locations throughout the reconstruction: at ceiling and bed height in bedrooms; and at various heights within cupboard A2, in corridor 4 outside room 17, outside room 8 and outside room 15, within rooms 11 and 15, and in corridor 3 outside room 19.
5. Instrumentation was placed in corridor 4 outside room 15, and within rooms 11 and 15 and in corridor 3 outside room 19 to measure continuously carbon dioxide, carbon monoxide and oxygen. Instrumentation was also placed within rooms 11 and 15 and in corridor 3 outside room 19 to measure acid gases, such as hydrogen cyanide[3055].
6. Smoke detectors were installed at various locations, including in cupboard A2[3056].
7. No attempt was made in this reconstruction to replicate the ventilation system at Rosepark.
Visual description of the test
8. A fire was ignited at the left side of the cupboard, at low level, using two number seven cribs, which are standardized ignition sources[3057]. The resulting events were filmed from various angles[3058]. Camera A was located at the south-west fire door looking up the corridor towards the corner; Camera B had a view directly through the door of room 9 looking towards cupboard A2; Camera C was at the corner looking generally towards cupboard A2; Camera D was positioned at the door of room 8; Camera E was located to obtain a direct view of cupboard A2 through the door of room 7; and Camera F was located next to the corridor 3/4 firedoor looking towards the corner[3059]. The following points may be noted from the video footage:
8.1. Camera F: At 1 minutes 25 seconds from ignition wisps of smoke were beginning to emerge from the cupboard at a high level and drift across the ceiling immediately in front of the cupboard[3060].
8.2. F: Prior to 2 minutes 26 seconds smoke continue to emerge from the upper part of the door, becoming slightly thicker. There was a slight build up of hazy smoke at high level around the corner[3061].
8.3. B: At 2 minutes 32 seconds, more smoke could be seen beginning to emerge from the cupboard[3062].
8.4. Camera A: At 2 minutes 40 seconds, smoke could be seen moving above Chair 2[3063].
8.5. F: A noticeable dark layer of smoke had developed along the ceiling in corridor 4A[3064]. A: At 2 minutes 55 seconds black smoke could be seen above Chair 2[3065].
8.6. B: At 3 minutes 6 seconds, there was a sudden burst of smoke from the cupboard, perhaps indicating an aerosol rupturing without exploding[3066].
8.7. A: At 3 minutes 23, layers of smoke could be seen in corridor 4B building up at the ceiling and reaching down above the top of the doors[3067]. Likewise, by 3 minutes 40 seconds, on Camera F, the layer of smoke in corridor 4A was becoming thicker and deeper from the ceiling down and appeared to be moving into corridor 4B. By this time the fire had spread across the full width of the cupboard[3068].
8.8. C, E and F: At 3 minutes, 48 seconds and shortly afterwards, flames could be seen coming out of the cupboard at a relatively high level, indicating that the fire was beginning to affect materials the full height of the cupboard[3069].
8.9. B: From 3 minutes 6 seconds until 4 minutes 8 seconds, smoke could be seen emerging from the upper part of the cupboard and rising up to the ceiling[3070].
8.10. C: from 3 minutes 48 seconds to 4 minutes 21 seconds flames could be seen licking out at the high level of the cupboard and spreading across the ceiling a bit[3071].
8.11. F: At 4 minutes 10 seconds, the small finger of flame at the top part of the cupboard door appeared to have got larger, indicating that the cupboard was beginning to fill with flames and the fire was beginning to spill out of the cupboard into the corridor[3072]. The layer of smoke in the corridor was sharply defined, indicating that the smoke was quite hot[3073].
8.12. B, E and F: At 4 minutes 23 seconds, a sudden flare of flame emerged from the cupboard about half way down the cupboard, on an aerosol exploding or bursting. The flames emerging at the top of the cupboard had by this point been spreading across the ceiling; following the aerosol explosion they seemed to become much more substantial[3074].
8.13. F: At 4 minutes 33 seconds, the flames appeared to be burning more fiercely and vigorously and emerging from the top of the cupboard, licking across the ceiling[3075].
8.14. C: By 4 minutes 40 the flames had burst out of the cupboard and were spreading from the upper half of the cupboard across the walls and burning the wallpaper and ceiling materials[3076]. B: At 4 minutes 42 the right hand cupboard door swung open, in response to an aerosol rupturing[3077].On Camera A, meantime, the layer of smoke could be seen getting deeper and moving towards the far end of the corridor[3078].
8.15. B: At 4 minutes 50 seconds, there was sudden flaring as a result of an aerosol bursting[3079].
8.16. E: At 4 minutes 56 seconds, the flaming seen coming from the cupboard was becoming more and more vigorous and there seemed to be burning at quite a low level[3080]. The flames were clearly being deflected by the door leaves[3081].
8.17. B: At 5 minutes 10 seconds, gases could be seen emerging from the headrest of the upholstered chair, Chair 2[3082], indicating that that chair was getting hot and was likely to ignite soon. At about the same time, on Camera A one could see smoke building up at and below ceiling level along the whole length of corridor 4B from the corner to the end[3083].
8.18. A: At 5 minutes 13 seconds, flames appeared along the ceiling of the corridor[3084].
8.19. F: Just before 5 minutes 17 seconds there were explosions characteristic of two further aerosols becoming involved in the fire[3085].
8.20. E: At 5 minutes 20 seconds the fire was burning from top to bottom inside the cupboard and flames were coming through the gap along the hinged edge of the door[3086].
8.21. A: At 5 minutes 27 seconds, the flames were spreading into corridor 4B[3087].
8.22. F: At 5 minutes 28 seconds, burning material was falling from a high level and continuing to burn on the floor. Burning material within the cupboard was falling to a low level and spilling out of the cupboard[3088].
8.23. A: At 5 minutes 42 seconds, the wallpaper was beginning to burn, while the smoke had reached quite a depth down from the ceiling and was getting much blacker[3089].
8.24. C: At 5 minutes 39 seconds, the fire seemed to be involving the surface coverings of the wall of corridor 4A[3090].
8.25. F: By 5 minutes 51 seconds, the whole corridor around cupboard A2 was becoming involved in the fire. The right hand door of the cupboard was blown even further open by a pressure blast[3091].
8.26. A: At 6 minutes 6 seconds, the flame was clearly entering corridor 4B, and the materials (light fittings, smoke detectors, other plastic fittings) were burning and falling to the floor. It was quite smoky even low down[3092]. E and F: By this time the smoke layer was coming quite low down such that by 6 minutes 15 seconds the view of the cupboard from camera E was entirely obscured[3093].
8.27. A: At 6 minutes 34 seconds, the flames were reaching to the far end of corridor 4B[3094].
8.28. D: At 6 minutes 47 seconds, volatile gases could be seen evolving from the top of Chair 2[3095].
8.29. D: At 7 minutes 12 Chair 2 and the table at the corner of the corridor had spontaneously ignited[3096].
8.30. D: At 7 minutes 39 seconds a lot of material at low level in the corridor was burning[3097].
9. After about 7 minutes the temperatures in the reconstruction rig began to fall[3098]. The fire burned itself out after between seven and eight minutes as a result of oxygen starvation[3099]. The corridors remained filled with smoke[3100].
Temperature data
10. The temperature data obtained in this reconstruction disclosed the following:
10.1. Within the cupboard, the temperature peaked at around 950 degrees Celsius after 6 minutes[3101]. The fire immediately then started to die back, with temperatures in the cupboard being 130 degrees Centigrade at 15 minutes and 89 degrees at 30 minutes[3102].
10.2. The fire preferentially spread from the cupboard towards corridor 4B, where peak temperatures of 990 degrees Centigrade are shown near room 8 at 7 minutes and 840 degrees near room 15 at 7 minutes. In the other direction, temperature reached 760 degrees near room 17 at 6.3 minutes. The temperatures within the corridor varied significantly only the height of the corridor, peaking at just over 200 degrees at low level outside room 17[3103].
10.3. Within the rooms with open doors in corridor 4, ceiling temperatures reached 540 degrees and nose height temperatures reached 300 degrees. The temperature rise diminished, and was delayed, the further the room was from the fire. The temperature rise was also delayed at lower levels within the rooms as compared with higher levels. For example, inside room 15 (which had an open door), after about 4 minutes the temperatures rose quite steeply with peak temperatures at about 7 minutes of about 300 degrees Celsius at high level within the room and of over 100 degrees Celsius at low level within the room[3104].
10.4. Within the rooms with closed doors ceiling temperatures reached only 30 degrees Centigrade, and nose height temperatures reached only 26 degrees. For example, inside room 11 (which had a closed door), for at least 5 minutes there was no penetration of heat into the room. After about 5 minutes, the temperature at a high level in the room rose to about 30 degrees Celsius. At lower levels within the room the temperature rise was less[3105]. The temperature barely rose above ambient temperature[3106].
Gas measurements
11. The data from the gas measuring instrumentation were analysed by Professor Purser, and from that data he derived graphs showing the concentration over time at various locations of oxygen, carbon monoxide, carbon dioxide and hydrogen cyanide[3107].
11.1. In corridor 4 the concentration of carbon dioxide and carbon monoxide built up to a peak at around 7 minutes. The oxygen concentration fell from about 21% to about 3%[3108].
11.2. Inside room 15 (which had an open door) the conditions generally mirrored the conditions in the corridor, albeit they were not quite so bad. They were shown graphically on p. 90 (manuscript p. 98) of Pro 1458. At about 6.5 minutes from ignition the oxygen concentration in the atmosphere of the room dropped precipitately, and at the same time the concentrations of carbon monoxide and carbon dioxide rose very rapidly[3109].
11.3. Although direct measurements were not taken in other rooms with open doors in corridor 4, having regard to the measurements taken at various locations, it would be reasonable to conclude that all the rooms in corridor 4 with open doors were subjected to the same conditions, albeit with a slight time lag for rooms further from the fire[3110].
11.4. Inside room 11 (which had a closed door), there was a very slight increase in carbon dioxide or monoxide concentration entered the room and very slight oxygen depletion[3111]. The conditions were shown graphically on p. 92 (manuscript p. 100) of Pro 1458[3112]. These indicated very slow penetration of the high concentrations of gases in the corridor, percolating through gaps around the doors. The concentrations of toxic gases in the room were very low[3113].
11.5. The conditions measured in the BRE Test in corridor 3 were shown graphically on p. 102 (manuscript) of Pro 1458. By reference to the carboxyhaemoglobin measurements taken from residents it can be concluded that the conditions in corridor 3 were in fact worse than those disclosed by the BRE Test 1[3114].
CHAPTER 32 (formerly 27): DEVELOPMENT OF THE FIRE FROM IGNITION TO FLAMING COMBUSTION
Introduction
1. BRE Test 1 involved the ignition of two number 7 cribs. A smoke detector was activated almost immediately[3115].
2. In a real fire (unless it had been deliberately set) there would have been some process of fire development before the fire reached a stage equivalent to two number 7 cribs[3116]. This is of potential relevance for the following reasons:-
2.1. In the real fire, there would have been some period of time between ignition and the point when the fire reached a stage equivalent to two number 7 cribs[3117].
2.2. In the real fire, the smoke detector would have activated at a point in the fire development before it reached a stage equivalent to two number 7 cribs[3118].
2.3. The theoretically possible additional period of fire development before reaching the stage equivalent to two number 7 cribs is extremely variable[3119].
2.4. However the actual additional period of fire development can be identified rather more closely - and limited to no more than two minutes - by reference to three considerations:-
2.5.1. The presence of a smoke detector in the ceiling of cupboard A2.
2.5.2. The real evidence of the clock from room 12.
2.5.3. The evidence of Yvonne Carlyle.
2.6. In relation to the presence of the smoke detector, there are two issues to be addressed: (1) the speed of activation of the smoke detector after ignition; and (2) the time which would have elapsed between the activation of the smoke detector and a fire equivalent to two number 7 cribs.
2.7. Conclusions drawn on the basis of the timings in BRE Test 1 require to be modified to take these considerations into account.
Smouldering fires generally
3. Depending on circumstances, a fire may smoulder for some time before flaming combustion occurs[3120]. For example, a newly ignited cigarette of full length would typically burn for up to about 20 minutes[3121] and, if it has gone down the back of a sofa or armchair, it could take an hour or more before flaming combustion occurs[3122]. Dr. Jagger referred to an incident reported in the literature in which flaming erupted in a rubbish container 192 minute after an ashtray had been emptied into it. This was the longest period between discard of smoking materials and flaming ignition which he had come across referred to in the literature which he had examined[3123].
Speed of activation of smoke detector after ignition
4. The smoke detector in the ceiling of cupboard A2 would have detected a smouldering fire in the lower left hand corner of the cupboard within a few minutes[3124]. Mr. Cutler stated that this would happen almost immediately. He stated that one could not envisage a smouldering process at the bottom left hand side of the cupboard which had not reached the stage of flaming combustion going on for minutes before the detector would respond[3125]. He stated that the detector would respond within the first minute or two of a smouldering process[3126]. Mr. Todd was content to accept Mr. Cutler's opinion that a fire did not smoulder for very long and stated that he would not have been surprised if it were a period of "a minute or two, maybe more"[3127].
4.6. Ionisation detectors (such as the detector in the ceiling of cupboard A2) operate essentially by counting the number of smoke particles entering the detector[3128].
4.7. It follows that, in order for an ionization detector to respond to a fire: (a) the fire must have generated smoke particles; and (b) sufficient smoke particles must have travelled to the location of the ionization detector and entered the detector[3129].
4.8. The time which it takes for the combustion product to reach the detector will be affected by the nature and size of the space in which the detector is located[3130].
4.9. If a fire starts inside a cupboard the particle density will fill the volume relatively quickly as compared with a large room, with a consequent effect on the speed of response of a detector within the cupboard[3131].
4.10. Smoke from a smouldering fire would rise to the top of the cupboard by reason of buoyancy effects due to heat[3132].
4.11. Any smoke from a fire at the bottom left hand side of the cupboard would have to pass across the detector to reach the extract vent[3133].
5. In any event, Mr. Cutler considered it likely, given the speed of development of the fire at Rosepark, that it could not have been incipient for more than one or two minutes. That view would be reinforced if the fire had been started by a spark igniting flammable materials, since "that would actually more likely generate a flaming incipient fire rather than starting with overheating pyrolisis"[3134].
Time from activation of smoke detector to a fire equivalent to two number 7 cribs
6. The period between activation of the smoke detector and a fire which was equivalent to two number 7 cribs was not more than about two minutes. Mr. Mortimore expressed the view that a few minutes would have elapsed between the activation of the smoke detector and a fire equivalent to two number 7 cribs. Likewise, Mr. Shipp expressed the view that after the activation of the alarm it could take a number of minutes before the fire developed to a size where it could be equated to two cribs[3135]. On the other hand, Mr. Cutler expressed the view that for a fire to be as well developed as the Rosepark fire had been within eight minutes, it could not have been incipient for more than one or two minutes. On that basis, he took the view that "The fire probably started at much the same time as the first alarm was signalled"[3136]. This was also the approach taken by Professor Purser[3137] and Colin Todd agreed with this - expressing the opinion that "I can't see that it could have been more than the order of a minute or two"[3138].
7. There is a piece of evidence which would support the view that any adjustment should not be more than about two minutes. That piece of evidence is the clock from room 12.
7.1. A plastic battery-operated clock was positioned in the wall in room 12. Following the fire that clock was examined and it was found that the plastic face had melted stopping the hands, which were at 04.40[3139].
7.2. In BRE Test 1, the temperature in room 12 at ceiling height rose, as in other rooms with open doors off corridor 4, after 4 minutes to a peak between 7 and 8 minutes. The temperatures at lower levels also rose but started to do so at a somewhat later point in time than the temperature at higher level. The temperature profiles for room 12 can be seen on the diagram on p. 155 of Pro 1458 (p, 154 manuscript)[3140].
7.3. The period of 12 minutes between the smoke detector sounding at 4.28 am and the time when the clock in room 12 apparently stopped by reason of the effects of heat on the plastic at 4.40 am would be generally consistent with:
7.3.1. A fire generally of the sort observed in the BRE test of a duration of 7-10 minutes seen in the three BRE tests; preceded by
7.3.2. A period of a few minutes (between 2 and 5) after the activation of the smoke detector and before the fire had reached a stage equivalent to two number 7 cribs.
7.4. The shorter end of that range would be consistent with Mr. Cutler's evidence.
7.5.The shorter end of the range would also be consistent with the evidence of Professor Purser. On the basis of the BRE Test 1 results, he concluded that the effects of toxic gases would have resulted in the death of residents of open rooms in corridor 4 before the effects of heat caused pain or burns[3141]. On the basis of the BRE Test 1 results, he estimated that Margaret Lappin, the occupant of room 12, died 9 minutes after the fire alarm sounded. He assumed that the fire alarm sounded when the fire was at a point which corresponded to ignition of the BRE Test 1 and so placed her death at 04.37 am. If one accepts Professor Purser's evidence that the effects of toxic gases would have resulted in death before the effects of heat caused pain or burns, Mrs. Lappin must (even allowing for the fact that the clock was higher on the wall than bed height) have died before 04.40.
Yvonne Carlyle's evidence
8. In considering how long before the fire alarm sounding there had been a fire in cupboard A2 it is also necessary to take into account Ms Carlyle's evidence. She was in the vicinity of the sluice room and cupboard A2 a few minute before the fire alarm sounded and not earlier that 04.21 am. She did not notice anything unusual. In particular she did not smell anything unusual[3142].
9. Although someone passing along the corridor with a smouldering fire in cupboard A2 might (depending, for example, on his or her sense of smell) not have noticed anything unusual, it would be consistent with her evidence taken along with the conclusion drawn above that only a few minutes elapsed between ignition and the development of a fire to a stage equivalent to the two flaming cribs used to ignite the fire in the BRE tests.
CHAPTER 33 (formerly 28): BRE TEST 1 A REASONABLE REPRESENTATION OF THE FIRE AT ROSEPARK
BRE Test 1 was representative of the fire at Rosepark: corridor 4
1. The following considerations support the proposition that the BRE Test 1 was - so far as corridor 4 was concerned - reasonably representative of the fire at Rosepark:
1.1. The forensic pattern of burning left at the end of the reconstruction in Test 1 was very similar to that found after the fire at Rosepark[3143]. According to Mr. Shipp, the similarity in the pattern of damage gives confidence: (a) that the assumptions which had been made in setting up the reconstruction were well-founded; and (b) that the temperature and gas-sampling measurements are reasonably representative of the position in the fire at Rosepark[3144].
1.2. The temperatures recorded by fire crews attending the actual scene and entering the building around the same time after ignition were similar[3145].
2. The actual condition of the residents in corridor 4 was consistent with the effects which would have been predicted from the BRE Test 1 data.
2.1. All of the residents in rooms with open doors had, as predicted, sustained high carboxyhaemoglobin levels, indicative of severe exposure to carbon monoxide and other toxic combustion products, and consistent with the effects of a short, rapidliy developing, vitiated fire, such as was seen in BRE Test 1[3146]. Furthermore:
2.1.1. There was no evidence that those deceased who were found in their beds had moved or tried to get out of bed. Their appearance was consistent with having died in their sleep. This would be consistent with the effects which Professor Purser predicted from the data generated in the BRE Test 1 - namely rapid loss of consciousness followed swiftly by death.
2.1.2. Two residents may have got out of bed but collapsed on the floor. Again, this would be consistent with Professor Purser's description of the effects of carbon monoxide poisoning.
2.1.3. Professor Purser predicted from the temperature data in the BRE Test 1 that the deceased in open door rooms in corridor 4 would not have suffered discomfort due to the effects of heat before they died, but would have been sufficient to cause post mortem burns after about 15-20 minutes[3147]. At post mortem examination some of these deceased were, indeed, found to have sustained burns, but the pathologist's conclusion was that these were probably sustained post mortem.
2.2. There was a reasonable correlation between:
2.2.1. The carboxyhaemoglobin doses predicted by Professor Purser from the BRE Test 1 results as having been sustained by the residents from corridor 4 who were rescued alive and taken to hospital; and
2.2.2. The carboxyhaemoglobin doses which Professor Purser estimated (by back calculating from measurements taken on arrival to hospital) those two residents to have sustained when they were taken from the locus[3148].
2.3. In the case of Robina Burns, the actual level was 43-49%, with the actual figure likely to be at the lower end of the spectrum. The predicted figure was 42-56%.
2.4. In the case of Isabella MacLeod the actual level was 43-57% with the actual figure likely to be at the lower end of the spectrum. The predicted figure was 34-41% but this would require to be adjusted upwards to allow for: (a) her low body weight; and (b) the evidence of heat penetration through her bedroom door.
3. There is further circumstantial evidence which lends further weight to the validity of BRE Test 1 so far as Corridor 4 was concerned.
3.1. The smoke detector in cupboard A2 activated at or about 04.28. For reasons explained above, this occurred not more than two minutes before the fire reached a stage of development equivalent to ignition of the BRE Test 1.
3.2. By about 04.34 am the fire in the cupboard had developed sufficiently rapidly to cause the extract fan to fail by one of the mechanisms mentioned above. One might compare the Test 1 data on the relationship between temperature and time within the cupboard shown on p. 144 of Pro 1458.
3.3. At or about 04.38 am Mr. Norton and Ms Carlyle went up the south west stairwell. They found some smoke at the top of the stairwell and Mr. Norton heard a crackling sound. This would be consistent with a fire which has broken out of the cupboard and has spread along corridor 4B, with smoke reaching the end of corridor 4B. One might compare what was seen on Camera A in the BRE Test 1 at 6 minutes 6 seconds and 6 minutes 34 seconds.
3.4. At about 04.40 am temperatures hot enough to melt plastic reached down from the ceiling to the level of the clock in room 12. For the reasons set out above this would be consistent with: (i) a fire which developed generally in the same manner as the fire in BRE Test 1; preceded by (ii) a period of no more than two minutes from activation of the alarm to a fire equivalent to ignition of the BRE test.
3.5. It is known, from the protection patterns on the carpet at Rosepark, that the right hand cupboard door changed its position from being slightly ajar to being wide open in the course of the fire. Just such a phenomenon was seen in BRE Test 1.
3.6. It is known that the corridor 3/4 firedoor at Rosepark was opened at some point during the fire. During BRE Test 1 firedoors were indeed seen to open and close during the test.
4. That BRE Test 1 was a good model of the fire which actually developed at Rosepark is further supported by these considerations:
4.1. Evident care was taken to replicate to a high degree the physical layout of the relevant part of the building and the potential fuels available.
4.2. Although there were some differences in the setup which may well have affected the detailed development of the fire within the cupboard, these would not be likely to affect the overall picture significantly.
4.2.1. The connection of cupboard A2 to the extract ventilation system might have accelerated the development of the fire in the cupboard slightly, but would have had no significant effect on the overall development of the fire outside the cupboard[3149].
4.2.2. The mis-location of a quantity of aerosols on shelf 3 instead of on shelf 5 would be liable to affect the detail of the growth of the fire, but would not affect the overall pattern of fire development. There was at least one aerosol on an open shelf, and could have become involved in the fire at an early stage. Further, about 5-7 minutes into the BRE Test 1 fire the temperatures were so high at all levels of the cupboard that any aerosol in the inner cupboard would also have been affected. The peak temperature might have been delayed if the aerosols were in fact in the inner cupboard. But the effects of the fire beyond the cupboard would not otherwise have been affected[3150].
4.2.3. The precise distribution of the fuels within the cupboard would affect the detailed development of the fire within the cupboard. But this would not have had a significant difference on the development of the fire once it had broken out into the corridor although it might affect the timings by a minute or two either way[3151].
BRE Test 1 did not replicate the conditions in corridor 3
5. During the reconstruction the firedoor between corridor 3 and corridor 4 was left slightly ajar from the outset (leaving a gap of 20 mm between the edge of the door and the doorframe)[3152]. Toxic fire gases penetrated corridor 3 and were measured. The conditions measured in corridor 3 were not, however, consistent with the evidence from Rosepark itself.
5.1. The pattern of burning, heat and smoke damage in corridor 3 in the reconstruction was less than that at Rosepark itself[3153].
5.2. The carboxyhaemoglobin doses which Professor Purser predicted from the BRE Test 1 results would have been sustained by occupants of open rooms in corridor 3 were about half the figures which he obtained by back calculating to the time of rescue from the actual levels of carboxyhaemoglobin measured on arrival at hospital[3154].
It may be concluded that at Rosepark, additional smoke penetrated corridor 3 whether because the door was open in such a way as to allow more smoke into the corridor or because there was an alternative route through the ventilation ducting or for both reasons[3155].
The inherent variability of fire behaviour
6. There is an inherent variability in the way in which fire will behave[3156]. BRE did two further full-scale reconstructions (Tests 2 and 3). In Test 2 the rig was fitted with a sprinkler system. In Test 3 all of the bedrooms were fitted with fire-rated doors which were closed. The fires in these Tests grew in a similar manner to Test 1, although they developed at first rather more slowly and reached peak temperatures at around 10 minutes rather than the 6 minutes seen in Test 1)[3157].
7. The HSL at Buxton undertook a test in which a fire was set (using two number 7 cribs) in a cupboard with the same dimensions as cupboard A2 and stocked with similar contents (apart from aerosols). This fire had a significantly slower development and much more extended duration than was observed in the various tests undertaken by the BRE. The most likely explanation for this, according to Mr. Shipp, was that in the HSL test the cupboard doors were wide open, while in the BRE tests (as at Rosepark itself), the left hand door was always latched shut and the righthand door either shut or slightly ajar. This would contain the fire and (along perhaps with differences in the layout of the materials) would account for the more severe fires observed in the BRE work[3158].
8. Having reviewed this material, Martin Shipp (who had the benefit of having undertaken not only of the three large scale reconstruction tests, but also quite a number of tests in which fires were set in a cupboard of the same dimensions as the cupboard at Rosepark[3159]) expressed the opinion that "within the context of fire starting with number seven cribs, that our figures of 7 to 10 minutes are probably more plausible than the Buxton tests"[3160]. Standing the evidence outlined above, Mr. Shipp's opinion may be accepted.
CHAPTER 34 (formerly 29): DEVELOPMENT OF THE FIRE: THE ROLE OF AEROSOLS
Aerosol cans: general
1. An aerosol can is a way of containing a product and enabling the consumer to dispense it[3161]. A typical aerosol can is made of aluminium or steel plate[3162].
2. In addition to the product (i.e. the useful contents, such as hairspray or deodorant), a typical aerosol can also contains a propellant[3163]. The most common propellant used today is liquid petroleum gas ("LPG"), which is a mixture of propane and butane[3164]. LPG would be the typical propellant for an aerosol can containing toiletries[3165]. 100g would be the typical amount used[3166].
3. The contents of the can are held under pressure, typically 3-4 times atmospheric pressure at ambient temperature[3167]. When the valve is actuated, liquid contents are discharged from the can. The LPG vaporizes. The product remains in liquid state but forms an aerosol[3168].
4. The body of a steel aerosol can is made from steel plate which is cut and rolled to form the body of the can. The two ends are joined by a welded seam[3169]. The base and top are crimped on[3170].
5. The body of an aluminium aerosol can is a monoblock, i.e. made from a single piece of aluminium[3171]. Only the top requires to be crimped on[3172].
Aerosol cans: effects of exposure to heat and direct flame
6. If an aerosol can should be heated, this would cause an increase in the internal pressure of the can[3173]. In those conditions, a pressure may be reached at which the can will fail[3174]. Should this occur, the can will fail catastrophically[3175].
7. Exposure to heat may cause the base of an aerosol can to bellow[3176]. Where an aluminium aerosol can fails by reason of exposure to direct flame, it will typically fail either by bursting open or by the top flying off[3177].
8. Where a steel aerosol can fails by reason of exposure to direct flame, it will typically fail at the top or bottom crimp. If the bottom crimp fails, the whole can becomes a missile. If the top crimp fails, the cap comes off[3178].
9. Aerosols which did not rupture might nevertheless leak fuel into the fire, adding to the overall fuel available[3179].
10. These different modes of failure were illustrated in video footage of tests undertaken by the BRE[3180].
11. The response of an aerosol can to heat or flame is extremely unpredictable:
11.1. In BRE Test 1, some cans exploded; some leaked; others neither exploded nor leaked[3181]. The first explosion occurred some 4 minutes 23 seconds after ignition.
11.2. In BRE Tests 2 and 3, the first aerosol burst at 8 minutes and 2 seconds and 8 minutes and 21 seconds from ignition respectively, significantly later than in Test 1[3182]. In Test 2 the explosion of an aerosol caused structural damage to the rig itself[3183].
11.3. In one of the cupboard tests undertaken by the BRE some aerosols acted as projectiles, one travelling 12 metres and another 14 metres[3184].
11.4. In Test 1 of the BRE work on the ventilation ducting, no aerosols exploded[3185].
11.5. In Test 4 of the BRE work on the ventilation ducting, of the 28 aerosols, 14 ruptured. Some rocketed forcefully punching holes in the cupboard walls and ceiling but none penetrated through or caused the cupboard doors to fail[3186].
12. If an aerosol can should fail in the context of a fire:
12.1.1. It would suddenly release a quantity of fuel into the fire, creating a fireball or causing the fire to flare up[3187].
12.1.2. The sudden expansion of the contents as they moved from liquid to gas would cause overpressures, typically an explosion of the type known as a BLEVE (boiling liquid expanding vapour explosion)[3188].
These effects can be seen in the video footage from BRE Test 1[3189].
13. Where multiple aerosols fail in the context of a fire, the aerosols typically explode sequentially. In other words, there will be a series of discrete failures, rather than a cumulative blast[3190].
Involvement of aerosols in the fire at Rosepark
14. The following aerosol cans found within cupboard A2 had all failed in a manner characteristic of a can exposed to external heating by fire[3191]:-
14.1. The aerosol can, Label 627[3192] (found amongst debris on the floor).
14.2. The two aerosol cans, Label 628[3193] (found amongst debris on the floor).
14.3. The aerosol can, Label 629[3194] (found in the middle of shelf 3).
14.4. The aerosol can, Label 631[3195] (found amongst debris on the floor).
14.5. The aerosol can, Label 487[3196] (found at the back of the lower shelf of the inner cupboard).
It may be concluded that each of these aerosol cans failed in response to the fire in the cupboard, releasing its contents into the fire.
15. It may be inferred from the evidence that the right hand cupboard door of cupboard A2 had moved during the course of the fire[3197] that at least one of the aerosols had failed, causing an overpressure, in the manner seen at 4 minutes 40 seconds and also at 5 minutes 51 seconds in BRE Test 1[3198].
16. The timing of involvement of these aerosols in the fire cannot be ascertained from the forensic evidence. That might have been affected by whether any aerosol which became involved in the fire was in the inner cupboard or not. By reason of its location in the middle of shelf 3, it may be concluded that the aerosol, Label 629, was on that shelf before the fire started. By reason of its location at the back of the lower shelf of the inner cupboard, it may be concluded that the aerosol, Label 487, was in that location before the fire. It cannot be determined from the physical evidence where the other aerosols which had failed in response to the fire, which were all in debris on the floor, were before the fire[3199].
CHAPTER 35 (formerly 30): DEVELOPMENT OF THE FIRE - THE ROLE OF
FURNITURE
Furniture in Corridor 4
1. At the time of the fire there were certain items of furniture in corridor 4. Some of this furniture was moved subsequently, but its position during the fire was established by examining protection marks on the walls and floor. Fig. 3 in Pro 1454 (Mr. Mortimore's report) shows the location of these items of furniture[3200]:-
1.1. Chair C1 (Label 773[3201]) was an upholstered chair located just to the east of the door to room 15. This chair was significantly fire-damaged, although the front face of the chair, which faced west, had been burned less severely than the back of the chair[3202].
1.2. Chair C2 (Label 768[3203]) was an upholstered chair located just to the west of the corner. This chair had a timber frame that had been formed into a curved base and chair back. This chair exhibited a relatively even pattern of fire damage[3204].
1.3. There was a small table against the wall between the door of room 9 and the corner. The front of this table was charred and when it was moved, protection patterns were observed on the wall behind it. These patterns indicated that the table had not been moved since the fire[3205].
1.4. There was a wheelchair just outside room 12.
2. The upholstered furniture contributed fuel to the fire.
3. Typical foam fillers for furniture have the potential to release toxic components such as hydrogen cyanide during combustion. PVC can also produce hydrogen chloride when burned[3206]. It may be concluded that the upholstered furniture in the corridor at Rosepark contributed to the toxicity of the atmosphere by releasing hydrogen cyanide and hydrogen chloride[3207].
3.1. Foam and vinyl of the same kinds as were comprised in Labels 768 and 773 were supplied to the HSL and were subjected to tests reported in Pro 1407[3208]. Samples of foam and cover material were subjected to fire and the combustion products collected and analysed. In both cases, certain quantities of hydrogen cyanide and hydrogen chloride were found[3209]. The quantities produced in the tests were not such as to cause concern on their own, but Dr. Jagger who spoke to these tests explained the limitations of the exercise and, in particular, recognized that the effects would be additive to the effects of other combustion products[3210].
3.2. Chairs of generally similar construction and materials as Labels 768 and 773 were supplied to the BRE and were used by the BRE in undertaking the reconstruction work[3211]. The gas measurements undertaken disclosed significant quantities of hydrogen cyanide[3212].
3.3. Blood samples for the deceased who died at the scene were tested for hydrogen cyanide, with negative results. This does not, however, imply that these deceased were not exposed to hydrogen cyanide at the scene, or that the findings in BRE Test 1 of hydrogen cyanide invalidates the BRE test: hydrogen cyanide is very unstable in blood post mortem; and the measurement of hydrogen cyanide post mortem requires very sensitive instrumentation. The techniques used would not have detected levels below 0.52 mg/l[3213].
CHAPTER 36 (formerly 31): DEVELOPMENT OF THE FIRE - THE EVIDENCE OF MRS. BURNS
1. Following the fire, Robina Burns was rescued alive from her bedroom (room 10) at Rosepark but died later in hospital[3214]. Before she died, Mrs. Burns was able to give her daughter, Mrs. Crawford, an account of her experiences on the night of the fire. The following are the salient features of Mrs. Burns' account, as described by Mrs. Crawford.
1.1. Mrs. Burns went to bed between 8 and 9 pm[3215].
1.2. She always had her bedroom door closed at night. She liked to sleep with her bedside light on and the window closed[3216].
1.3. She was woken up by the sound of her bedside light "popping"[3217]. Her room was in darkness[3218].
1.4. When she woke up she could smell smoke[3219].
1.5. She went to the door and put the ceiling light on[3220].
1.6. She opened the door and could hear a roar. She saw smoke and flames rush along the corridor[3221]. She described the flames as being near the floor[3222].
1.7. She shut her door quickly again[3223].
1.8. She went over to the window and opened it and sat down in her chair[3224].
2. There are two adminicles of evidence which assist in relating this account to the development of the fire. Firstly, Mrs. Burns reported smelling smoke when she woke. This implies (assuming, as must be the case, that any smoke was caused by the fire) that she woke at some point after the fire had started. Secondly, Dr. Lygate explained Mrs. Burns' description of the fire which she saw on opening her door as a fire hunting for oxygen, consistent, according to Dr. Lygate, with a point in time some five minutes after flaming combustion[3225].
3. Although this is a hearsay account, there is no reason not to accept it as generally credible and reliable subject to one qualification. When Mrs. Burns awoke her room was in darkness and it may therefore be concluded that her bedside light had gone out. However, it would not be safe to rely on her evidence that she had been woken by the bulb "popping".
3.1. The failure of her bedside light would be capable of being explained either: (a) by the bulb blowing; or (b) by the effects of the fire at the distribution board, in particular causing the circuit breaker which protected the relative circuit to trip in response to heat[3226].
3.2. A "popping" sound could be explained by the explosion of aerosol cans in the fire or the explosion of an electric light fitting at ceiling level in the fire[3227].
3.3. Since Mrs. Burns' room was in darkness when she awoke, it would have been a natural inference that she had been awoken by the bulb "popping", particularly if she heard "popping" sounds.
CHAPTER 37 (formerly 32): DEVELOPMENT OF THE FIRE: CORRIDOR 3
Introduction
1. Corridor 3 should have been protected from the effects of fire and smoke by the corridor 3/4 firedoor and the cavity barriers in the suspended ceiling.
2. In fact, corridor 3 suffered significant ingress of smoke and toxic fire gases - albeit that the levels were much less than was experienced in corridor 4. This is clear from the following evidence:
2.1. Five of the six residents in corridor 3 required to be hospitalized following the fire and all of these had achieved significant carboxyhaemoglobin levels. Two of them died in hospital. This shows that there was significant ingress of smoke and toxic fire gases into corridor 3.
2.2. On the other hand, all the residents of corridor 3 were rescued alive (albeit that two died later)[3228]. The carboxyhaemoglobin levels of the residents who had rooms with open doors in corridor 3 were analogous to those of the residents who had closed doors in corridor 4. The levels of those whose doors were slightly ajar were lower, and these residents survived.
3. On the basis of the actual carboxyhaemoglobin levels of residents from corridor 3, it may be estimated that the amount of fire effluent penetrating corridor 3 in the actual incident was about twice as much as penetrated the corridor in the BRE Test 1[3229].
4. Smoke and toxic gases penetrated corridor 3 in two principal ways:
4.1. at the corridor 3/4 firedoor; and
4.2. through the ventilation ducting.
There may also have been some minor spread of smoke through unstopped penetrations in the firewall that separated the two corridors[3230].
Smoke penetration at the corridor 3/4 firedoor
5. Smoke and toxic gases passed into corridor 3 at the corridor 3/4 firedoor. There was a V shaped pattern of smoke damage on the corridor 3 side of the firedoor[3231]. Furthermore, the plastic of the light on the corridor 3 side of the door had been significantly melted. There was also heat damage to the paint on the corridor 3 side of the door[3232]. It follows that this firedoor was open during the fire to a sufficient extent to allow heat, smoke and fire gases to pass from corridor 4 into corridor 3[3233].
6. Following the fire:
6.1. The plastic of the fire exit light (in particular the diffuser) which was located above the door on the corridor 3 side was found to have melted[3234].
6.2. Material from the fitting had dropped onto the top of the leaf in its molten state and the door leaf had closed onto it leaving an imprint[3235].
6.3. Melted plastic was found on the carpet immediately below the location of that light (Label 699)[3236]. The smear of plastic had been gathered up into a lump with a flat side, consistent with the edge of the door resting against the plastic at that point[3237].
6.4. A plastic material was found adhered to the base of the kickplate and on the base of the doorleaf, under which it had passed for a distance of approximately 320 mm from the leading edge of the leaf[3238].
6.5. The plastic material was of the same composition to the diffuser of the fire exit sign on the corridor 3 side of the door which had melted[3239].
7. It may be inferred that melted material had dropped from the diffuser onto the carpet, and that the door had swept across this and pushed it up into the greater mass[3240].
8. The question remains how the door came to be open. There are two possibilities[3241]:
8.1. The firedoor did not close properly at the outset.
8.2. The firedoor opened in the course of the fire.
9. It is likely that the door closed properly at the outset but that it was subsequently opened in the course of the fire by pressure effects arising from the explosion of aerosols, additive to the pressure effects of the fire itself.
9.1. It is unlikely that the firedoor failed to close properly at the outset.
9.1.1. On examination of the door leaf and its furnishings after the fire:
9.1.1.1. There was no evidence of any warping of the door leaf.
9.1.1.2. The standard door closer operated normally.
9.1.1.3. The hinges had remained intact[3242].
A test showed that the door set would have closed adequately provided there were no other restrictions to prevent it doing so[3243].
9.1.2. The fire alarm was tested weekly, inter alia, to check that firedoors closed properly. When Mr. Muir tested the fire alarm system after installing the new panel, a few days before the fire, the corridor 3/4 firedoor closed properly.
9.1.3. Following the fire, the release mechanism was tested and was found to be working properly. In any event, it was a fail safe mechanism, such that if anything interfered with the circuit, the hold-open device should fail and the door should close[3244].
9.2. It would have been possible for the firedoor to have been opened by pressure effects, particularly caused by exploding aerosols, perhaps in conjunction with pressure effects arising from the fire itself[3245].
9.2.1. During BRE Test 1, the self-closing firedoors in the reconstruction opened and closed spasmodically[3246].
9.2.2. Mr. Martin carried out calculations, on the basis of which he concluded that the pressure pulse from an exploding aerosol located in the corridor 6 metres from a corridor firedoor would not have sufficient duration to open the firedoor. Other experienced expert witnesses expressed a contrary view:
9.2.2.1. Mr. Shipp suggested that Mr. Martin was taking an extremely cautious approach. There was no question that the aerosols in a number of the BRE tests had caused pressure waves. In some, the pressure was sufficient to cause some structural damage. There was no question that the pressures were sufficient to open a self-closing door, albeit for a very short period of time. These pressures would be additional to the (relatively small) positive pressures created by the fire itself[3247]. His view was that if the firedoor was blown open it was the pressure pulse that was doing it[3248].
9.2.2.2. Dr. Vince likewise took issue with Mr. Martin's approach. On the basis of his experience, it would not have surprised him if the pressure pulse produced by an exploding aerosol could open a firedoor. As he explained it, as the pulse moved away from its source it would become longer in duration, a factor which Mr. Martin had not taken into account.
9.2.2.3. Mr. Mortimore considered it likely that exploding aerosols would have caused the door to open, albeit briefly. He found Mr. Martin's conclusion surprising[3249].
9.3. Had the firedoor been blown open, it could have taken as much as 30 seconds for the door closer to close it again, although 10 seconds or so would be the normal duration of operation[3250].
9.3.1. If the temperature was high enough the plastic of the diffuser could have been melted while the door was open[3251].
9.3.2. BRE Test 1 produced peak temperatures of 760 degrees at high level near room 17 minutes[3252].
9.3.3. Mr. Mortimore had difficulty with this explanation. But he seems to have been predicated on the basis that the door would have been open "for a few seconds at most"[3253], and Mr. Miles indicated a rather longer period as at least possible.
9.3.4. It is possible that the closing action of the door could have been delayed or inhibited slightly by the expansion of the intumescent strip under the hinges (perhaps in conjunction with one of the other mechanisms)[3254], or by something physically jamming the door[3255].
Smoke penetration along the ductwork
Background
10. There were vents into the ductwork from cupboard A2, in the ceiling of corridor 4, in the ceiling of corridor 3 and in the ceiling of the central stairwell.
11. Since there were no fire dampers in the ducting, there was no physical barrier to the smoke passing along the ducting and, through the vents in the ceiling, into corridor 3 or the central stairwell.
12. The ventilation ducting in corridor 4 was found following the fire to be soot-stained. There were soot deposits around the vent in the central stairwell. There was no visible soot staining in the ducting in corridor 3[3256].
13. At about 4.33 am, when staff passed through the central stairwell, they noticed nothing untoward.
14. At about 4.37 am, thick smoke was entering the central stairwell from the vent in the central stairwell. It may be inferred that this was smoke from the fire which had passed along the ventilation ducting
BRE work
15. The BRE undertook reconstruction tests to investigate the potential for smoke to pass along the ventilation ducting[3257]. A test rig was constructed consisting of a cupboard opening into a corridor representing the area from the corner of corridor 4 up to corridor 3. Ventilation ducting, of the same sort as at Rosepark, was installed, running from the cupboard along the equivalent length of corridor 4 to corridor 3 and along corridor to the central stairwell. Vents were installed into the cupboard, corridor 4, corridor 3 and the central stairwell[3258]. A fire damper of the metal shutter variety (which was the type of damper which you would have expected to be fitted in 1992) was fitted at the location of the corridor 3/4 firedoor. This was of a sort which could be reset between tests, but its operation would be very similar to the response of a fire damper operated by means of a fusible link[3259]. In each of the three tests, a fire was ignited in the cupboard using cribs[3260].
Test 1
16. In Test 1 of this series, the cupboard was fully fitted out with goods including aerosol canisters. A block of wood was located in the fire damper so that it would remain open throughout the Test[3261].
16.1. At 2 minutes 46 seconds from ignition smoke started filling corridor 4.
16.2. By 3 minutes 14 seconds the cupboard was well alight.
16.3. By 3 minutes 36 seconds smoke was billowing out of the ducting in the location of the outlet into the central stairwell.
16.4. At 3 minutes 58 seconds the fire damper switch operated, although (by reason of the block of wood) the damper did not close.
16.5. Relatively little smoke exited from the corridor 3 outlet, but this was an artefact of the way the trunking had been laid for this test (with the outlet into the central stairwell laid higher than the outlet into corridor 3)[3262].
16.6. The ducting within corridor 3 did not show visible soot staining. However, on being wiped with a cloth, evidence of sootting was apparent[3263].
Test 2
17. Test 2 of this series was conducted in an identical manner to Test 1 (apart from not including any aerosols), but: (a) included an operational damper at the boundary between corridor 3 and corridor 4; and (b) the location of the corridor 3 outlet was adjusted to deal with the problem which had been identified in Test 1[3264].
17.1. At 2 minutes 14 seconds from ignition, smoke appeared from the outlet in Corridor 4.
17.2. At 3 minutes 12 seconds, smoke was seen coming from both the corridor 3 outlet and the central stairwell outlet.
17.3. At 4 minutes 13 seconds the fire damper closed.
17.4. At 5 minutes 16 seconds there were still wisps of smoke coming from the central stairwell outlet, which may simply have been the residual smoke which had been left in the ducting after the damper closed.
Test 3
18. Test 3 of this series was conducted in an identical manner to Test 1 (apart from not including any aerosols) but included a fan in the duct at roof level. The damper was held open with a block of wood. The fan was operating prior to ignition and was switched off six minutes thereafter[3265].
18.1. At 2 minutes 30 seconds from ignition, smoke was seen issuing from the fan and no smoke was visible coming from other parts of the ducting system at all.
18.2. At 6 minutes the fan was switched off.
18.3. At 6 minutes 30 seconds, smoke was visible from the corridor 4 outlet.
18.4. At 6 minutes 47 seconds, smoke was visible from the corridor 3 outlet.
18.5. At 7 minutes and 58 seconds the fire damper switch operated.
Test 4
19. Test 4 of this series was conducted with the same rig as Test 3 but with three changes: (a) 28 aerosols were placed in the cupboard; (b) the cupboard doors (which were ordinary cupboard doors not fire doors) were closed; and (c) the damper was allowed to operate. The extract fan was operated but switched off after six minutes[3266].
19.1. At 1 minute 15 seconds from ignition it was possible to see fire in the cupboard.
19.2. At 5 minutes 37 there was no smoke emerging from the ducting (the fan still being on).
19.3. At 6 minutes the fan was switched off.
19.4. At 7 minutes 58 seconds, smoke was seen coming out of the central stairwell vent.
19.5. At 9 minutes 46 seconds, an aerosol exploded.
19.6. At 10 minutes 40 seconds the damper operated.
19.7. At 11 minutes 8 seconds another aerosol exploded and flames were emitted from the cupboard.
19.8. At 11 minutes 46 seconds there was some from the two outlets in corridor 4.
19.9. At 12 minutes 20 seconds, occasional bursts of flames burst through the cupboard doors.
19.10. At 14 minutes 12 seconds there was continuous flaming.
19.11. At 15 minutes 55 seconds the cupboard doors were burning on the outside of the doors.
19.12. By 16 minutes 58 seconds the cupboard doors were burned away.
19.13. No smoke was seen emerging from the corridor 3 vent.
19.14. Of the 28 aerosol canisters, 14 had ruptured and 14 remained unruptured.
Conclusions
20. The following conclusions may be drawn from these tests:
20.1. As long as the fan of the extract ventilation system was operating, smoke drawn into the ductwork in corridor 4 or from cupboard A2 would have been extracted to exterior of the building by the fan and would not have passed along the ductwork into corridor 3 or the central stairwell[3267].
20.2. If the fan was not operating, smoke would travel along the ducting to the central stairwell[3268].
20.3. Likewise, if the fan was not operating, smoke would travel along the ducting and discharge into corridor 3[3269].
20.4. In Test 1 smoke took more than 3 minutes to reach the central stairwell vent from ignition and Martin Shipp took the view that smoke could travel from the cupboard through into corridors 2 and 3 within about 3 or 4 minutes[3270]. In Test 4, in which the fan was operating at ignition and was subsequently switched off, smoke was seen at the central stairwell vent about 2 minutes after the fan was switched off.
21. It may be inferred that the extract system stopped working at or about 4.34 am. This could have happened due to:
21.1.1. the effects of fire on the Vent-Axia controller next to the distribution board or its associated cabling[3271];
21.1.2. the tripping of the MCB which protected the circuit to the Vent-Axia controller due to the heat of the fire; or
21.1.3. the tripping of the extract fan itself due to heat[3272].
The relative significance of these two sources of smoke and toxic gases in Corridor 3
22. The relative contributions to the toxic atmosphere in corridor 3 of the two major sources of smoke and toxic gases (i.e. at the firedoor and through the ducting) cannot be determined with any certainty or precision[3273]. Quite apart from any other considerations, while the timing of the failure of the fan (and hence smoke passing into corridor 3 and the central stairwell) can be identified, the time when the corridor 3/4 firedoor opened is unknown.
23. It may be concluded that smoke and toxic gases passing through the ducting contributed to the toxic atmosphere in Corridor 3. Mr. Shipp's view was that there could have been reasonable quantities of smoke coming through the ducts - possibly, but probably not, in quantities which would on their own have been life-threatening[3274]. Mr. Mortimore's view, drawn with a degree of caution from the amount of smoke staining and the heat effects at the door, was that the door was considerably more significant than the smoke that came through the ductwork[3275].
CHAPTER 38 (formerly 33): WHEN DID IGNITION OCCUR?
This Chapter addresses the determination which the Sheriff Principal is required to make under section 6(1)(a), namely: when any accident resulting in the death took place
The Crown proposes the following determination: The fire started at or about 04.25 am on 31 January 2004.
General
1. This proposed determination is based on the following propositions
1.1. The fire alarm first sounded at about 04.28 am.
1.2. The first smoke detector to be activated was the detector in the ceiling of cupboard A2.
1.3. This detector was activated very quickly - and no more than a few minutes - after ignition.
When did the fire alarm first sound?
2. The fire alarm first sounded shortly before 04.28.29 am. For practical purposes, it may be taken that the fire alarm sounded at about 04.28 am.
2.1. The time shown on the CCTV footage at the start of a sequence of footage during which Yvonne Carlyle and then all three members of staff, approached the fire panel was 05.32.48.
2.2. The time shown on the CCTV footage was approximately 1 hour, 4 minutes and 19 seconds fast[3276].
Which was the first smoke detector to activate?
3. The smoke detector in the ceiling of cupboard A2 was the first smoke detector to activate.
3.1. There was a smoke detector in the ceiling of cupboard A2.
3.2. This detector was operational.
3.2.1. All of the smoke detectors at Rosepark were of the same type.
3.2.2. All of the smoke detectors at Rosepark which were operational after the fire were tested and found to be working.
3.2.3. It may reasonably be inferred from the fact that the operational detectors were found to be working that the detectors in the fire-damaged part of the building (including the detector in cupboard A2) were also working before the fire[3277].
3.3. A fire developing low down on the south side of the cupboard with the doors disposed as the cupboard doors were at Rosepark would activate the detector in the ceiling of cupboard A2 (assuming it was operational) before it would activate any other detector.
How quickly after ignition did the detector sound?
4. This detector in the ceiling of cupboard A2 was activated very quickly - and no more than a few minutes - after ignition. This is discussed in Chapter 32 (formerly 27) above[3278]. The precise time cannot be identified with precision, but the evidence discussed there would suggest that a determination that the fire ignited at or about 04.25 am would be reasonable.
CHAPTER 39 (formerly 34): SMOKE AND TOXIC FIRE GASES
Products of combustion
1. The following are typical products of combustion, which may be seen or experienced in a fire.
1.1. Smoke, which consists of carbon and other particulate matter released as the fuel in the fire burns[3279].
1.2. Irritant chemicals, in gas phase and attached to the particulate matter[3280]. If inhaled, these can damage the linings of the lungs and airways[3281].
1.3. Axphyxiant gases, which impair the delivery of oxygen to or its use in the vital organs, particularly the heart and brain[3282]. The most important of these are:
1.3.1. Carbon monoxide.
1.3.2. Hydrogen cyanide.
1.3.3. Carbon dioxide.
These are associated with the depletion of Oxygen[3283].
2. Someone exposed to a sufficient dose of asphyxiant gases will become incapacitated and die. Someone who survives the fire may nevertheless die later as a result of the effects of the fire.
Carbon monoxide
3. When carbon monoxide is inhaled, it combines with the haemoglobin in the blood (the substance which carries oxygen from the lungs to the tissues) to form carboxyhaemoglobin. Conversion of the haemoglobin in the blood to carboxyhaemoglobin impairs the ability of the blood to deliver oxygen to the tissues[3284].
4. There is, at least for the sorts of timescales involved in this case, a relationship between the level of carbon monoxide in the atmosphere, duration of exposure and the percentage carboxyhaemogblin which the person exposed will achieve. For example, exposure to 10,000 ppm for 5 minutes will have the same effect as 5,000 ppm for 10 minutes[3285]. So even a very low exposure, if it is continued over a significant period of time, can produce incapacitating and lethal effects.
5. At between 30 and 40% carboxyhaemoglobin, the victim will lose consciousness. If the dose increases sufficiently, the victim will die. 50% carboxyhaemoglobin may be regarded as a reliable indicator that the subject has sustained a lethal dose of carbon monoxide: someone rescued from a fire with 50% carboxyhaemoglobin is very unlikely to survive[3286].
6. Someone rescued with a carboxyhaemoglobin below 40% has a good chance of survival[3287]. This is the case irrespective of the age and health status of the individual[3288]. The findings from Rosepark were consistent with this conclusion: all those who were rescued with less than 40% carboxyhaemoglobin survived; where those above it died[3289]. Professor Purser analysed the age distribution and health status of the individuals who survived and those who died. He found that, apart from an apparently minor effect of pre-existing heart disease, the one variable which stood out was the percentage carboxyhaemoglobin[3290]. This was consistent with the clinical view of Professor Langhorne[3291].
7. The percentage carboxyhaemoglobin in the blood is a good marker for the other effects of exposure to the products of fire[3292]. It is relatively stable post mortem[3293]. On the other hand, in a subject who is removed from the scene, however, the percentage carboxyhaemoglobin will decrease as air is breathed in and, in particular, if oxygen therapy is given[3294]. If the percentage carboxyhaemoglobin is measured subsequently (e.g. on arrival at hospital), it will be lower than the percentage carboxyhaemoglobin with the patient had sustained during the fire, but, provided the relevant timings are known, a calculation can be done to estimate the exposure during the fire[3295].
Hydrogen Cyanide
8. Hydrogen cyanide is generated by fuels contained nitrogen and the quantity of hydrogen cyanide depends on the quantity of nitrogen in the fuels burned and the combustive conditions.
9. Hydrogen cyanide is carried to the tissues of the vital organs where it inhibits the use of oxygen by those tissues. A short exposure to a high concentration of hydrogen cyanide can cause rapid loss of consciousness. Exposure to lower concentrations may have little effect over extended periods of time[3296].
Carbon dioxide
10. Concentrations of over 5% carbon monoxide can themselves cause loss of consciousness. The principal effect of elevated levels of carbon dioxide is however that it increases the amount of air a person breathes each minute. This increases the rate at which other toxic gases, particularly carbon monoxide and hydrogen cyanide are taken up[3297].
Oxygen depletion
11. The fire depletes the oxygen in the air, so persons subjected to the atmosphere of a fire will inhale less oxygen that normal. Generally speaking, the effects of this are minor up to the point in time when the other gases are having a major effect in any event[3298].
Effects of a toxic mixture
12. The incapacitating effects of carbon monoxide and hydrogen cyanide are additive. In order to deal with this, a calculation can be done using the concept of the fractional effective dose, to find whether or not the subject has been exposed to a sufficient dose of the mixture to cause unconsciousness[3299]. An adjustment can be made for the effects of carbon dioxide[3300]. The method is known as "the method of Purser", having been developed by Professor Purser, who gave evidence[3301].
CHAPTER 40 (formerly 34A): EFFECTS OF TOXIC ATMOSPHERE ON THE OCCUPANTS OF CORRIDORS 3 AND 4
Introduction
1. There are two sources of data on the toxic atmosphere to which the occupants of corridors 3 and 4 of Rosepark were exposed:
1.1. There is actual data, in the form of the carboxyhaemoglobin levels achieved by residents of those corridors, which disclose that the resident were exposed to significant levels of carbon monoxide, and hence other products of combustion[3302].
1.2. There is the data obtained in the BRE Test 1. On the assumption that these data reasonably reflected the actual fire at Rosepark, the effects of the toxic atmosphere disclosed by those data can be predicted.
Actual data
2. The residents of corridors 3 and 4 all, indeed, sustained significant exposures to carbon monoxide (and, accordingly, the other combustion products). This was established by reference to the elevated carboxyhaemoglobin levels.
2.1. Residents in open rooms in corridor 4
The carboxyhaemoglobin levels of these deceased (who were all found dead at the locus) were established by toxicological analysis of post mortem blood samples[3303].
Deceased |
COHB measurement |
|
Thomas Cook |
55 |
|
Helen (Ella) Crawford |
56 |
|
Agnes Dennison |
58.2 |
|
Margaret Lappin |
80.2 |
|
Mary McKenner |
81.8 |
|
Julia McRoberts |
48 |
|
Margaret Dorothy (Dora) McWee |
68.3 |
|
Ellen (Helen) Milne |
47.8 |
|
Annie (Nan) Stirrat |
63 |
|
Annie Thomson |
71.8 |
2.2. Residents in corridor 4 rooms with closed doors
2.2.1. Measurements were taken of the carboxyhaemoglobin levels of Robina Burns and Isabella MacLeod (who were both rescued alive from the scene) when they arrived at hospital. From these figures the carboxyhaemoglobin levels which they had achieved by the time they left the locus may be estimated[3304].
2.2.2. Robina Burns had a measured carboxyhaemoglobin figure of 38% on admission to hospital. She had received approximately 23-33 minutes of oxygen. She accordingly had sustained a 43-49% carboxyhaemoglobin level by the time she was taken from the scene, with the actual figure likely to be at the lower end of the spectrum[3305].
2.2.3. Isabella MacLeod was in cardiac arrest when she was rescued. She had a measured carboxyhaemoglobin figure of 25.8%. The back calculated figure was 43-57%, with the actual figure likely to be at the lower end of that spectrum[3306].
2.3. Residents in corridor 3 with doors open
2.3.1. Measurements were taken of the carboxyhaemoglobin levels of Isabella MacLachlan and Margaret Gow (who were both rescued alive from the scene) when they arrived at hospital. From these figures the carboxyhaemoglobin levels which they had achieved by the time they left the locus may be estimated.
2.3.2. Isabella MacLachlan had a carboxyhaemoglobin level of 29.6% on admission to hospital. She had received approximately 62-73 minutes of oxygen administration. She accordingly had sustained a 42-55% carboxyhaemoglobin level by the time she was taken from the scene, with the likelihood being that the true figure was at the lower end of this spectrum[3307].
2.3.3. Margaret Gow had a carboxyhaemoglobin level of 24.7% on admission to hospital. She had received approximately 51-66 minutes of oxygen administration. The back-calculated figure was 44-53%[3308].
2.4. Residents from corridor 3 with doors slightly ajar
2.4.1. Jean Paterson had a carboxyhaemoglobin level of 19.6% on admission to hospital. The back-calculated value was 29-32%.
2.4.2. Richard Russell had a carboxyhaemoglobin level of 25.5% on admission to hospital. The back-calculated value was 35-38%
2.4.3. Jessie Hadcroft had a carboxyhaemoglobin level of 24.8% on admission to hospital. The back-calculated value was 38-41%[3309].
Predicted effects
3. Professor Purser converted the data obtained from BRE Test 1 into graphs which related the mixture of gases inside rooms 15 and 11 to the likely times at which an individual in these rooms would suffer incapacitation and death as well as discomfort due to the heat effects of the temperature measurements[3310].
3.1. In room 15 and the other rooms with open doors off corridor 4, at bed height, there was very little gas exposure until round about 6 minutes or so, when there was a very dramatic increase in the concentrations of all the gases. Very quickly indeed the occupant of that room would have become unconscious - at about 6.7 minutes. Had there been no hydrogen cyanide present, incapacitation would have occurred at about 7.5 minutes. Just before 8 minutes the lethal level of 50% carboxyhaemoglobin would have been reached (i.e. the point at which the occupant would either be dead or would have died even if rescued). The exposure to heat at bed height in this room would not have been sufficient to cause any form of pain or incapacitation before death, although the temperatures would have been sufficient to cause superficial post-mortem burns after 15-20 minutes[3311].
3.2. In room 11, there was very slow penetration of toxic gases. A subject exposed to the conditions in this room would have experienced no heat hazard but a gradual slow loading of carbon monoxide would have occurred with a predicated percentage carboxyhaemoglobin of around 15% after 30 minutes. It would have taken 46 minutes before an occupant had sustained a sufficient dose of carbon monoxide to lead to loss of consciousness. In this room, there was no hydrogen cyanide, so it would have been carbon monoxide which would have been responsible for collapse. The 50% carboxyhaemoglobin level would have been reached at about 65 minutes[3312].
4. For a room occupant at bed height in one of the rooms in corridor 4 with open doors incapacitation and loss of consciousness would have occurred at around 6.5 minutes, due principally to the effects of hydrogen cyanide[3313], with a contribution from carbon monoxide and with the uptake of both gases driven by the high carbon dioxide concentration. The carboxyhaemoglobin concentration in an exposed subject would be predicted to reach 50% at around 7.9 minutes and death from asphyxia would be predicted at between 7 and 9 minutes, possibly a minute or so later in rooms further from the fire. Pain from heat exposure and burns would not be predicted before death. Even in rooms 16 and 17, where the highest temperatures were measured, occupants would have been unconscious due to the effects of axphyxiant gases before heat exposure would have been sufficient to cause pain and dead before any burns occurred. The sequence of events leading to death would be predicted to be hyperventilation, followed by loss of consciousness, deepening coma and cardio-respiratory failure due mainly to the combined effects of carbon monoxide and hydrogen cyanide. The principal agent causing cessation of breathing and circulation would be carbon monoxide[3314].
5. Professor Purser estimated that the residents who were taken out alive would have, on the basis of the BRE Test 1 results, sustained the following carboxyhaemoglobin levels by the time they were rescued:
5.1. Robina Burns - 42-56%[3315].
5.2. Isabella MacLeod. Based upon the fire test data a forward predicted blood level of 26-32% would be predicted after 41 minutes exposure in her room. This would have increased rapidly when she was rescued and taken through the smoke-filled corridor, giving a final value of 34-41%. Her small body-weight might have resulted in a somewhat increased rate of uptake. In addition, there was some evidence of heat penetrating through her bedroom door, which would also have increased the figure[3316].
6. From the BRE Test 1 results for corridor 3, the predicted carboxyhaemoglobin levels would have been as follows[3317]:-
6.1. Margaret Gow - 22-29%
6.2. Isabella MacLachlan - 20-26%
6.3. Closed bedrooms - 12%
7. These predicted figures are markedly different from the actual exposure experienced by residents in corridor 3, in particular by Margaret Gow and Isabella MacLachlan. This is the case even though the BRE work assumed that the corridor firedoor between corridor 3 and corridor 4 had been ajar from the outset - whereas the conclusion on the evidence is that it was probably blown open at some point during the incident. This invites the conclusion that, so far as corridor 3 is concerned, the ingress of toxic gases was significantly greater than modeled in the BRE Test 1.
CHAPTER 41 (formerly 35): WHERE AND WHEN EACH DEATH TOOK PLACE
Section 6(1)(a): where and when each death took place
Proposed determination:-
1. Robina Burns died in the Coronary Care Unit at Glasgow Royal Infirmary at or about 7 p.m. on 2 February 2004.
2. Thomas Cook died in room 16 at Rosepark Care Home at or about 4.38 am on 31 January 2004
3. Helen (Ella) Crawford died in room 14 at Rosepark Care Home at or about 4.38 am on 31 January 2004
4. Agnes Dennison died in room 17 at Rosepark Care Home at or about 4.38 am on 31 January 2004
5. Margaret Gow died at Stobhill Hospital at or about 10.40 am on 2 February 2004.
6. Margaret Lappin died in room 12 at Rosepark Care Home at or about 4.39 am on 31 January 2004
7. Isabella MacLachlan died at Wishaw General Hospital at or about 3.35 am on 1 February 2004
8. Isabella MacLeod died at Stobhill Hospital at or about 4.45 pm on 1 February 2004
9. Mary McKenner died in room 13 at Rosepark Care Home at or about 4.39 am on 31 January 2004
10. Julia McRoberts died in room 9 at Rosepark Care Home at or about 4.38 am on 31 January 2004
11. Margaret Dorothy (Dora) McWee died in room 15 at Rosepark Care Home at or about 4.38 am on 31 January 2004
12. Ellen (Helen) Milne died in room 13 at Rosepark Care Home at or about 4.38 am on 31 January 2004
13. Annie (Nan) Stirrat died in room 9 at Rosepark Care Home at or about 4.38 am on 31 January 2004
14. Annie Thomson died in room 14 at Rosepark Care Home at or about 4.38.30 am on 31 January 2004
General
Deceased who died in hospital
1. Four of the deceased - Robina Burns, Margaret Gow, Isabella MacLachlan and Isabella MacLeod - were rescued alive from Rosepark Care Home and died subsequently in hospital. The place, time and date of death of each of these deceased is a matter of agreement and can, in any event, be identified from medical records. The references for each deceased are set out below.
Deceased who died at the locus
2. The other ten deceased were found dead at Rosepark Care Home following the fire.
Place of death
3.1. It is a matter of agreement that each of these deceased died at Rosepark Care Home on 31 January 2004.
3.2. It may be concluded that each of these deceased died in his or her bedroom. Seven of them were found after the fire in their bedrooms. The three others were moved to the dayroom from their bedrooms but it can be concluded from the times of death that each of them died in his or her bedroom.
Time of death
4. Times of death of these deceased were estimated by Professor Purser. Professor Purser was well qualified to offer opinion evidence as to the effects of toxic gases on the human body and to carry out the analyses which he explained in evidence. His estimates were based on the data from BRE Test 1 and proceeded on the assumption that the smoke alarm which was activated at or about 04.28 am corresponded to the ignition of the fire in the BRE Test 1[3318]. His timings have to be corrected to allow for the short period of time which is likely, in fact, to have passed between the activation of the smoke detector within cupboard A2 and the fire at Rosepark reaching a stage equivalent to the ignition of two number 7 cribs[3319]. For reasons set out earlier, an adjustment of about 2 minutes would be appropriate, recognizing that there is inevitably a measure of approximation involved in the exercise in any event.
5. The data generated by BRE Test 1 disclosed the concentrations of toxic fire gases to which an occupant of a room off corridor 4 would have been exposed in the course of a fire (assuming that the BRE test was reasonably representative of the fire at Rosepark). These concentrations are shown in Figure 3 of Professor Purser's report, Pro 2053[3320]. Professor Purser has, using standard methodology, derived Figure 4 from that data, to show inter alia the percentage carboxyhaemoglobin dose which would be achieved over time in the circumstances disclosed by the BRE Test 1 data.
6. The actual time of death of each deceased (based on the assumption that the BRE Test 1 results reasonably reflect the actual fire at Rosepark, and assuming that ignition of the BRE test rig corresponded to the fire alarm activation at Rosepark) may be ascertained by mapping the percentage carboxyhaemoglobin of each deceased as ascertained by toxicological analysis post mortem onto Professor Purser's graph (derived from the BRE Test 1 results) in Figure 4 (p. 20) of Pro 2053[3321]. Professor Purser undertook that exercise, rounding to the nearest half minute, and making adjustments: (a) in the case of Julia McRoberts to allow for her larger body weight[3322]; and (b) in the case of Thomas Cook and Helen (Ella) Crawford, for the fact that they were found on the floor of their respective rooms and may be inferred to have been more active than the other residents (and therefore inhaling carbon monoxide more quickly) before they lost consciousness[3323]. These timings, which, as noted above, require to be corrected to allow for the short period of time which is likely in fact to have passed between the activation of the smoke detector within cupboard A2 and the fire at Rosepark reaching a stage equivalent to the ignition of two number 7 cribs.
7. The relevant figures are as follows[3324]:-
|
Deceased |
COHB measurement |
Time derived by Professor Purser |
Corrected time allowing for period between smoke detector activation and a fire equivalent to "ignition" in BRE Test 1 |
|
Thomas Cook |
55 |
04.35.30 |
04.37.30 |
|
Helen (Ella) Crawford |
56 |
04.35.30 |
04.37.30 |
|
Agnes Dennison |
58.2 |
04.36 |
04.38 |
|
Margaret Lappin |
80.2 |
04.37 |
04.39 |
|
Mary McKenner |
81.8 |
04.37 |
04.39 |
|
Julia McRoberts |
48 |
04.36 |
04.38 |
|
Margaret Dorothy (Dora) McWee |
68.3 |
04.36 |
04.38 |
|
Ellen (Helen) Milne |
47.8 |
04.36 |
04.38 |
|
Annie (Nan) Stirrat |
63 |
04.36 |
04.38 |
|
Annie Thomson |
71.8 |
04.36.30 |
04.38.30 |
Specific findings
Robina Burns
8. Robina Burns died in the Coronary Care Unit of Glasgow Royal Infirmary at or about 7 pm on 2 February 2004[3325].
Thomas Cook
9. Thomas Cook died at Rosepark Care Home on 31 January 2004[3326].
10. Thomas Cook died at or about 04.38 am on 31 January 2010[3327].
11. Mr. Cook's body was moved from his bedroom, room 16, to the day room by fire fighters[3328]. Having regard to the time of death, he was already dead by that time.
Helen (Ella) Crawford
12. Helen (Ella) Crawford died at Rosepark Care Home on 31 January 2004[3329].
13. She died in room 14. Following the fire, her body was found lying on the floor beside her bed in her room, room 14[3330], and it may be concluded that she died there.
14. Helen (Ella) Crawford died at or about 4.36 am on 31 January 2004[3331].
Agnes Dennison
15. Agnes Dennison died at Rosepark Care Home on 31 January 2004[3332].
16. She died in room 17.
17. Agnes Dennison died at or about 4.38 am on 31 January 2004[3333].
Margaret Gow
18. Margaret Gow died at Stobhill Hospital at or about 10.40 am on 2 February 2004[3334].
Margaret Lappin
19. Margaret Lappin died at Rosepark Care Home on 31 January 2004[3335].
20. She died in room 12. Her body was moved by firefighters to the dayroom [RW; INSERT REFERENCE TO EVIDENCE], where she was examined by the police surgeon[3336].
21. Margaret Lappin died at or about 4.39 am on 31 January 2004[3337].
22. Mrs. Lappin's body was moved from her room, room 12, to the dayroom by firefighters[3338]. Having regard to the time of her death, it may be concluded that she had died in room 12.
Mary McKenner
23. Mary McKenner died at Rosepark Care Home on 31 January 2004[3339].
24. She died in room 13. She was found in bed there following the fire[3340].
25. Mary McKenner died at or about 4.39 am on 31 January 2004[3341]
Isabella MacLachlan
26. Isabella MacLachlan died at Wishaw General Hospital at or about 3.35 am on 1 February 2004[3342].
Isabella MacLeod
27. Isabella MacLeod died at Stobhill Hospital at or about 4.45 pm on 1 February 2004[3343].
Julia McRoberts
28. Julia McRoberts died at Rosepark Care Home on 31 January 2004[3344].
29. Julia McRoberts died at or about 4.38 am on 31 January 2004[3345].
30. She was found in her bed, in room 9, by fire fighters and her body was moved by them onto the floor of her room[3346]. Having regard to the time of her death, she was already dead. It may be concluded that she died in room 9.
Margaret Dorothy (Dora) McWee
31. Margaret Dorothy (Dora) McWee died at Rosepark Care Home on 31 January 2004[3347].
32. She died in room 15. Following the fire Margaret Dorothy (Dora) McWee was found in bed in room 15. There was no sign that she had tried to get out of bed[3348].
33. Margaret Dorothy (Dora) McWee died at or about 4.38 am on 31 January 2004[3349].
Ellen (Helen) Milne
34. Ellen (Helen) Milne died at Rosepark Care Home on 31 January 2004[3350].
35. She died in room 13. Following the fire, Ellen (Helen) Milne was found in bed in her room, room 13. There was no sign that she had tried to get out of bed[3351].
36. Ellen (Helen) Milne died at or about 4.38 am on 31 January 2004[3352].
Annie (Nan) Stirrat
37. Annie (Nan) Stirrat died at Rosepark Care Home on 31 January 2004[3353].
38. She died in room 9. Following the fire, Annie (Nan) Stirrat was found in bed in her room, room 9. There was no sign that she had tried to get out of bed[3354].
39. Annie (Nan) Stirrat died at or about 4.38 am on 31 January 2004[3355].
Annie Thomson
40. Annie Thomson died at Rosepark Care Home on 31 January 2004[3356].
41. She died in room 14. Following the fire, Annie Thomson was found in bed in her room, room 14. There was no sign that she had tried to get out of bed[3357].
42. Annie Thomson died at or about 4.38 am on 31 January 2004[3358].
CHAPTER 42 (formerly 36): THE CAUSE OR CAUSES OF DEATH OF EACH DECEASED
Section 6(1)(b): the cause or causes of death of each deceased
Proposed determination:-
1. The death of Robina Burns was caused by acute tracheobronchitis due to inhalation of smoke and fire gases. Ischaemic heart disease due to coronary artery atheroma and cardiac amyloidis were potential contributing causes.
2. The death of Thomas Cook was caused by the inhalation of smoke and fire gases.
3. The death of Helen (Ella) Crawford was caused by the inhalation of smoke and fire gases.
4. The death of Agnes Dennison was caused by the inhalation of smoke and fire gases.
5. The death of Margaret Gow was caused by bronchopneumonia due to the inhalation of smoke and fire gases.
6. The death of Margaret Lappin was caused by the inhalation of smoke and fire gases.
7. The death of Mary McKenner was caused by the inhalation of smoke and fire gases.
8. The death of Isabella MacLachlan was caused by bronchopneumonia due to inhalation of smoke and fire gases. Chronic obstructive airways disease was a potentially contributing cause of death.
9. The death of Isabella MacLeod was caused by bronchopneumonia due to hypoxic brain damage and the inhalation of smoke and fire gases.
10. The death of Julia McRoberts was caused by the inhalation of smoke and fire gases.
11. The death of Margaret Dorothy (Dora) McWee was caused by the inhalation of smoke and fire gases.
12. The death of Ellen (Helen) Milne was caused by the inhalation of smoke and fire gases.
13. The death of Annie (Nan) Stirrat was caused by the inhalation of smoke and fire gases.
14. The death of Annie Thomson was caused by the inhalation of smoke and fire gases.
General commentary
1. The bedroom of each of the deceased who was found dead at Rosepark was a room off corridor 4 the door of which was open. On the basis of the BRE Test 1 findings, each of these individuals was exposed to significant levels of smoke and toxic fire gases. Professor Purser's analysis showed that such exposure would have been fatal. Significant exposure to carbon monoxide (and, therefore, other toxic fire gases) was confirmed by the high carboxyhaemoglobin levels found in the blood of each of these deceased post mortem. All of these considerations support the conclusion of the pathologist at post mortem that, in each case, ther cause of death was that the deceased had died as a result of inhalation of smoke and fire gases.
2. Each of the deceased who died subsequently in hospital was also exposed to smoke and toxic fire gases. Significant exposure to carbon monoxide (and, therefore, other toxic fire gases) was established by reference to the elevated carboxyhaemoglobin level which each of these patients had on admission to hospital. In the case. Each of them suffered from recognized sequelae of the inhalation of smoke and fire gases, and died on 1st or 2nd February 2004. These consideration support the conclusion of the pathologist at post mortem that each of these deceased had died as a result of sequelae of the inhalation of smoke and fire gases.
Findings specific to individual deceased
Robina Burns
Proposed finding: The death of Robina Burns was caused by acute tracheobronchitis due to inhalation of smoke and fire gases. Ischaemic heart disease due to coronary artery atheroma and cardiac amyloidis were potential contributing causes.
1. Post mortem examination disclosed purulent secretions in the trachea and the bronchi - the visible signs of tracheobronchitis[3359].
Dr. Marjorie Black, 22 December 2009, am, pp. 64- under reference to Pro 1350.
2. By the time Robina Burns was taken from the locus, she had sustained significant exposure to toxic fire gases. Her blood carboxyhaemoglobin level when she arrived at hospital was 38.6%[3360]. This suggested significant smoke inhalation and exposure to carbon monoxide[3361]. Back-calculation from this figure to the time when she was rescued brings out an at the scene carboxyhaemoglobin level of 43 to 49%[3362]. Notwithstanding that her bedroom door had provided a significant degree of protection against heat and the ingress of toxic gases, the slow seepage of toxic gases into the room over the period while she remained there was sufficient, on the basis of the BRE Test 1 results, to expose her to 42-56% carboxyhaemoglobin[3363]. And she was further exposed in the course of rescue.
Thomas Cook
Thomas Cook died as a result of the inhalation of smoke and fire gases[3364].
Helen (Ella) Crawford
Helen (Ella) Crawford died as a result of the inhalation of smoke and fire gases.[3365]
Agnes Dennison
1. Agnes Dennison died as a result of the inhalation of smoke and fire gases[3366].
Margaret Gow
1. Margaret Gow sustained significant exposure to smoke and toxic fire gases.
2. She died of bronchopneumonia[3367]. Both lungs were found to be pneumonic at post mortem and this was confirmed histologically[3368].
3. The bronchopneumonia was a consequence of the inhalation of smoke and fire gases[3369].
Margaret Lappin
1. Margaret Lappin died as a result of the inhalation of smoke and fire gases[3370].
Mary McKenner
1. Mary McKenner died as a result of the inhalation of smoke and fire gases[3371]
Isabella MacLachlan
1. The cause of Isabella MacLachlan's death was bronchopneumonia[3372]. Dr. Black's conclusion to that effect was justified by her findings at post mortem of evidence of bronchopneumonia confirmed by histological examination[3373].
2. Mrs MacLachlan had sustained significant exposure to smoke and toxic fire gases. On admission to hospital she had an elevated carboxyhaemoglobin level of 29.6%.
3. The bronchopneumonia was caused by the inhalation of smoke and fire gases[3374]. Exposure to smoke and fire gases injures the airways and increases the risk of an infection developing in the lungs[3375].
4. A pre-existing chronic obstructive pulmonary disease may have contributed to the development of the bronchopneumonia[3376].
Isabella MacLeod
1. Isabella MacLeod died of bronchopneumonia[3377] At post mortem her lungs were found to be bronchopneumonic. This was confirmed by histological examination, She was also found to have sustained hypoxic brain damage[3378].
2. The bronchopneumonia was caused by hypoxic brain damage and the inhalation of smoke and fire gases[3379].
2.1. Hypoxic brain damage occurs when the brain is damaged as a result of lack of oxygen reaching it. This can in turn lead to cardio-respiratory arrest when the heart stops beating and the lungs stop breathing[3380].
2.2. The hypoxic brain damage was a consequence of the inhalation of smoke and fire gases[3381]. Exposure to fire gases reduces the flow of oxygen in the blood. If the level of oxygen in the blood is too low the major organs do not receive enough oxygen to continue to function. The brain is particularly susceptible to a lack of oxygen. Inhalation of fire gases can accordingly cause the brain to shut down[3382].
2.3. Bronchopneumonia may be a direct effect of smoke damaging the airways and the lungs. Someone who is severely unwell with hypoxic brain damage will also generally be at greater risk of infection, particularly bronchopneumonia[3383].
Julia McRoberts
1. Julia McRoberts died as a result of the inhalation of smoke and fire gases[3384].
Margaret Dorothy (Dora) McWee
1. Margaret Dorothy (Dora) McWee died as a result of the inhalation of smoke and fire gases[3385]
Ellen (Helen) Milne
1. Ellen (Helen) Milne died as a result of the inhalation of smoke and fire gases[3386].
Annie (Nan) Stirrat
1. Annie (Nan) Stirrat died as a result of the inhalation of smoke and fire gases[3387].
Annie Thomson
1. Annie Thomson died as a result of the inhalation of smoke and fire gases[3388]
CHAPTER 43 (formerly 37): THE CAUSE OF THE FIRE
This Chapter addresses the determination which the Sheriff Principal is required to make in terms of section 6(1)(b) of the 1976 Act, namely: the cause or causes of any accident resulting in the deaths. In the context of the present inquiry, this chapter is accordingly concerned with the cause of the fire.
The Crown's proposed determination is as follows: The accident resulting in the deaths was caused by an earth fault occurring where Cable V passed through the knockout at the back of the distribution box in cupboard A2.
The factum probandum (the fact in issue)
1. The factum probandum (the fact in issue) for the purposes of section 6(1)(b) in the present inquiry is the cause or causes of the fire which broke out in cupboard A2 at Rosepark Care Home on 31 January 2004.
Introductory remarks
2. In order for a fire to occur there requires to be a source of ignition, a fuel and oxygen[3389].
3. Cupboard A2 contained potentially flammable materials and oxygen. The key issue in the present context is what the source of ignition was for the fire.
4. Although there are other theoretically possible sources of ignition, the only sources of ignition which, on the basis of the evidence available in this case, arise as practical possibilities are a fire of electrical origin and mechanisms involving human agency[3390].
5. For reasons which are set out below[3391], mechanisms involving human agency can be excluded.
6. For reasons which are set out below[3392], all potential electrical sources of ignition may be positively excluded apart from two:-
6.1. A short circuit at the Cable V knockout.
6.2. The ordinary operation of a circuit breaker within the distribution board.
Short circuit at Cable V knockout
7. This explanation proceeds as follows.
7.1. The live conductor of Cable V came into contact with the metal edge of the knockout such as to generate an arc.
7.2. Sparks were generated, which escaped from the distribution board.
7.3. Those sparks ignited a suitable fuel - either solid flammable materials stored within the cupboard, thereby starting the fire or a flammable cloud within the cupboard which in turn ignited solid flammable materials within the cupboard.
Operation of a circuit breaker
8. This explanation proceeds as follows:-
8.1. One of the aerosols in the cupboard released its contents.
8.2. A flammable cloud formed around the distribution board
8.3. A circuit breaker tripped, as a result, for example, of a lightbulb blowing.
8.4. This ignited the flammable cloud which in turn ignited solid flammable materials within the cupboard thereby starting the fire.
General comment
9. Each of these two mechanisms would, if the matter had been considered in advance, have been regarded as highly unlikely. However, as Dr. Vince observed, given that a fire occurred in the cupboard, something a priori quite unlikely has happened[3393]. It does not follow that the Court cannot with hindsight, upon an assessment of the whole evidence, determine, on the balance of probabilities, what caused the fire. Low probability events can nevertheless occur[3394]. Many fire investigations disclose that something improbable has happened[3395] but even freak events can generally be explained[3396].
10. There is a body of circumstantial evidence[3397] which points to the conclusion that arcing at the Cable V knockout was the source of ignition.
10.1. There was arcing at the Cable V knockout[3398].
10.2. The Court may conclude, for reasons already explained, that cable protection which was intended to protect against arcing at the Cable V knockout was missing[3399]. If that conclusion is reached, then, in the circumstances of the distribution board, a mechanism which would have resulted in arcing can readily be postulated[3400].
10.3. The Court may, for reasons set out below, conclude that the Merlin Gerin circuit breaker, subjected to a fire from below, would have tripped before the cabling at the Cable V knockout would have been sufficiently degraded to cause arcing at that location. This proposition, if accepted, would justify the conclusion that the arcing at the Cable V knockout preceded the fire.
10.4. It is known that arcing can, given the right conditions, cause fire[3401]. Further, experiments undertaken by the HSL showed that arcing at the Cable V knockout could readily have generated sparks which could have escaped from the distribution board and fallen down to the very location where the fire started.
11. The key difficulty with this explanation lies in the question of ignition.
11.1. The HSL experiments failed, despite using favourable experimental conditions as compared with the situation at Rosepark, to ignite solid material by means of sparks from an earth fault at the Cable V knockout (except where the material had been soaked in a flammable liquid). Mr. Mortimore accepted that ignition of solid material by a spark was unlikely. However the possibility that such ignition could occur was not ruled out as wholly impossible.
11.2. The HSL experiments showed that it was easy for a spark to ignite a flammable atmosphere. Such a flammable atmosphere could be generated by a release from an aerosol. Such releases have been known to occur - principally in aerosols which have previously been stored in unsuitable conditions and which have become corroded - but are rare.
11.3. The HSL experiments also showed that it would be possible for a spark to ignite solid material which had been soaked in flammable liquid. Some content to the possibility that such a situation could have existed in cupboard A2 by reason of the presence of fragments of a glass bottle which had previously contained a cologne containing about 85% ethanol[3402], although it was difficult to imagine how this bottle could come to have been broken in advance of the fire. Alternatively this situation could have been created by a release from an aerosol.
12. On the other hand, there is no positive evidence which supports the alternative possiblity (i.e. a spark in the normal operation of a circuit breaker igniting a flammable atmosphere at the distribution board). That explanation has to start with a flammable cloud specifically in the vicinity of the distribution board. The only source for such a cloud, on the evidence, would have been a release from an aerosol. And the presence of such a cloud would have to have coincided with the tripping of a circuit breaker. A circuit breaker may trip at any time, but if it is correct that Mrs. Burns' evidence about her lightbulb "popping" relates to an event after the fire had started, there is no positive evidence that a circuit breaker did in fact trip before the fire started.
Summary of expert views
13. Three experts expressed opinions directly on the question of causation: Mr. Mortimore; Dr. Lygate; and Dr. Vince. In addition, Dr. Jagger gave evidence of work done which bears on the issue and expressed views on the probability of certain scenarios.
(a) Mr. Mortimore concluded that the fire had been caused by an arc at the Cable V knockout. An arc had undoubtedly occurred at the Cable V knockout. This had occurred before an arc at the busbar. Protective insulation which should have been in place to prevent just such an event occurring at the Cable V knockout was missing. In Mr. Mortimore's opinion, it was unlikely that the arc at the Cable V knockout occurred after the fire started, because the Merlin Gerin circuit breaker would probably have tripped in response to heat before Cable V would have become sufficient degraded to cause an arc. For these reasons, he discounted an explanation based on human agency (although he had other reasons for doing so as well). The aerosol release/circuit breaker theory required such an extraordinary coincidence of events that he excluded it.
(b) Dr. Lygate considered that the proposition that the fire was caused by arcing at Cable V was "so low a probability as to make the alternative hypothesis, namely that this fire was ignited by a discarded lit cigarette the more likely cause"[3403]. While he did not preclude the possibility that Mr. Mortimore was correct that arcing at Cable V had caused the fire[3404], he considered this so improbable as to be almost excluded[3405]. His opinion was that the arcing at Cable V occurred as a result of the effects of the fire[3406]. Dr. Lygate stressed the difficulty that sparks generated by an arc at Cable V would have in igniting solid materials[3407]. His view was that the development of the fire was likely to degrade Cable V sufficiently to generate an arc before the circuit breaker tripped. He also considered that if the conditions for an arc were to be created by the operation of the washing machines, this would be likely to have happened while the machines were running or shortly thereafter[3408]. Dr. Lygate accepted that if the fire was not caused by discarded smoking materials, an arc generated at the Cable V knockout was the likely cause[3409]. When the aerosol release/circuit breaker theory was put to him, he observed "You're getting into the bounds of the very unlikely"[3410].
(c) Dr. Vince, like Dr. Lygate, stressed the difficulty of igniting solid substances by means of a spark[3411]. He identified, as a possibility, that there was a leak of flammable propellant vapours from one of the many aerosol cans within the cupboard which could have been ignited by the ordinary operation of a circuit breaker within the distribution board[3412]. He acknowledged that there were a number of difficulties with this theory[3413]. He accepted that it would not be unfair to characterize it as a speculative possibility[3414]. His final conclusion was that it may not be possible to determine what caused the fire because of the serious problems attendant on each of the two mechanisms which had been identified[3415].
(d) Dr. Jagger spoke to the experiments which had been undertaken by the Health and Safety Laboratory. Particularly germane in the present context are those reported in Pro 1406[3416]. These illustrated the point relied upon by Dr. Lygate and Dr. Vince: in none of the experiments undertaken did sparks generated at the back of a distribution board ignite solid materials (except in the case of a solid which had been impregnated with a flammable liquid) even though the experimental setup used was more favourable to ignition than would have been the case at Rosepark. Dr. Jagger stated that the likelihood of a spark from the distribution board igniting solid combustibles in the cupboard at Rosepark was remote, of very low probability[3417]. The report, Pro 1406, noted that the lifetime of ejected glowing particles is likely to be a few seconds at most, such that ignition of solid fuels by this means is unlikely[3418]. Dr. Jagger stated that aerosol cans have been known to leak and the leaks to ignite[3419]. When the scenario suggested by Dr. Vince was put to him, he responded as follows[3420]:
"There are two events here. First of all in the scenario you're proposing you have to have a spark and you have to have a release from the aerosol can. ... With a solid material all you have to do is have a spark. So again it's the balance of the probability that there will be a release from the aerosol can against the possibility that the spark will ignite solid material. So judging between these two scenarios is, is quite, is difficult if not next to impossible,"
14. Each of these witnesses had undoubted expertise, although Mr. Mortimore had perhaps a particular combination of expertise in both fire investigation and electrical engineering. It goes without saying that deciding whether or not the cause of the accident which resulted in the deaths can be identified does not fall to be determined by the ipse dixit of any expert witness but is the responsibility of the Sheriff Principal. Only the Sheriff Principal has heard all the evidence, and only he is in a position to assess that evidence as a whole, to apply the relevant law on the assessment of evidence and to decide whether or not a particular cause has been established on the balance of probabilities.
General approach
15. The case in favour of the Cable V knockout explanation is a circumstantial one. There is relevant guidance on dealing with circumstantial evidence:
15.1. Circumstantial cases "often embrace a number of presumptions and require a balance of conflicting probabilities": Dickson, Evidence, para. 64.
15.2. In a circumstantial case it is necessary to consider the evidence as a whole: Al Megrahi v. H.M. Advocate, paras. 32, 36.
15.3. The nature of circumstantial evidence is such that it may be open to more than one interpretation. It is the function of the fact-finding tribunal to decide which interpretation to adopt: Al Megrahi v. H.M. Advocate paras. 32-36.
15.4. "Every one of the circumstances essential to the conclusion should be established by its own appropriate and independent proof; in other words, the superstructure of theory should only be raised on a foundation of undoubted facts": Dickson, para. 108.
15.5. "When each of the probative facts contributes immediately its own inference to the common conclusion, their compound strength is multiplied as their number is increased; and they may jointly establish the fact in issue, although all of them, when viewed independently, may be explicable upon other hypotheses": Dickson, para. 108; see also Little v. H.M. Advocate 1983 JC 16, 20 per the Lord Justice General (Lord Emslie).
15.6. "When proof of each of a series of facts raises an inference of the existence of another fact in the series - only the last of them inferring the existence of the fact in issue - the probability of the truth of the issue (in so far as it depends on that line of evidence) diminishes as the number of the facts increase, and the inconclusiveness of any one inference in the series is fatal to the whole. In this sense a circumstantial proof is like a chain, which cannot be stronger than its weakest link, and which becomes continually weaker as each new link is added, till it breaks with its own weight": Dickson, para. 108.
15.7. "The existence of a single probative fact absolutely incompatible with a hypothesis deducible from all the other probative facts necessarily excludes that hypothesis; for, as the whole of the actual facts must have been consistent, some other hypothesis must exist, with which all the probative facts will coincide": Dickson, para. 108.
15.8. "When the inconsistency between any of the probative facts and the hypothesis deducible from the rest of these facts is not absolute but probable, the conclusiveness of that hypothesis is diminished in proportion to the strength of the contrary probability": Dickson, para. 108.
16. There is also relevant guidance on dealing with competing explanations, in particular in the case of The Popi M [1985] 1 WLR 948. The issue in that case was whether a vessel had been lost as a result of the perils of the sea. It was established in the evidence that the vessel sank as a result of the ingress of water through a large aperture in its side. At trial, Bingham J was faced with a mass of expert evidence relating to the possibilities that the proximate cause of the loss was a collision with a submerged submarine on the one hand or wear and tear of the steel plating on the other. He held that the loss had been caused as a result of a collision with a submerged submarine, notwithstanding that he regarded it (for seven cogent reasons) as "so improbable that, if I am to accept the plaintiff's invitation to treat it as the likely cause of the casualty, I (like the plaintiff's experts) must be satisfied that any other explanation of the casualty can be effectively ruled out." On appeal, the House of Lords held that Bingham J had erred. The essential basis of the decision is expressed in these observations of Lord Brandon of Oakbrook (p. 955D-E):
"... he [Bingham J] regarded himself as compelled to make a choice between the shipowners' submarine theory on the one hand and underwriters' wear and tear theory on the other, and he failed to keep in mind that a third alternative, that the shipowners had failed to discharge the burden of proof which lay on them, was open to him."
17. Lord Brandon said this:
"My Lords, the late Sir Arthur Conan Doyle, in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson: "How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.
In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.
In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them."
18. Thomas LJ made the following observations about The Popi M in Ide v. ATB Sales Ltd, Lexus Financial Services t/a Toyota Financial Services (UK) plc v. Russell [2008] EWCA Civ 424:
"4. The circumstances of the case were, as Bingham J pointed out in his judgment, novel and striking. Some of the features were particular to a proof of loss by perils of the sea under a policy of marine insurance . ... The Popi M was a very unusual case and ... the difficulties identified in that case will not normally arise. In the vast majority of cases where the judge has before him the issue of causation of a particular event, the parties will put before the judges two or more competing explanations as to how the event occurred, which though they may be uncommon, are not improbable. In such cases, it is ... a permissible and logical train of reasoning for a judge, having eliminated all of the causes of the loss but one, to ask himself whether, on the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event: such cases are those where there may be very real uncertainty about the relevant factual background (as where a vessel was at the bottom of the sea) or the evidence might be highly unsatisfactory. In that type of case the process of elimination can result in arriving at the least improbable cause and not the probable cause.
5. In Datec Electronic Holdings v UPS [2007] UKHL 23 ([2007] 1 WLR 1325, [2005] EWCA Civ 1418)) one of the issues was whether the claimants had discharged the burden of establishing on a balance of probabilities that the loss of packages was caused by theft by an employee of UPS. As Richards LJ stated in his judgment at paragraph 67, there was sufficient evidence in that case and the surrounding circumstances to enable the court to engage in an informed analysis of the possible causes of the loss and to reach a reasoned conclusion as to the probable cause. He considered all of the possible causes and concluded that theft by employees was the probable cause of the loss. He concluded at paragraph 83:
"Nor do I see any inconsistency between my approach and the observations of Lord Brandon in The Popi M. The conclusion that employee theft was the probable cause of the loss is not based on a process of elimination of the impossible, in application of the dictum of Sherlock Holmes. It does take into consideration the relative probabilities or improbabilities of various possible causes as part of the overall process of reasoning, but I do not read The Popi M as precluding such a course. Employee theft is, as I have said, a plausible explanation and is very far from being an extremely improbable event. A finding that employee theft is more likely than not to have been the cause of the loss accords perfectly well with common sense. Thus the various objections to the finding made by the trial judge in The Popi M simply do not bite on the facts of this case."
On appeal, the approach of Richards LJ was criticised by counsel for UPS on the basis that he had been lured into a process of elimination (which could at best arrive at a conclusion as to which of many possible causes was the least unlikely) rather than a conclusion as to any cause which was more probable than all the others viewed together. In giving the only substantive opinion on this issue, Lord Mance rejected that criticism, though pointing out at paragraph 50 that:
"Inevitably, any systematic consideration of the possibilities is subject to a risk that it may become a process of elimination leading to no more than a conclusion regarding the least unlikely cause of loss."
As a matter of common sense it will usually be safe for a judge to conclude, where there are two competing theories before him neither of which is improbable, that having rejected one it is logical to accept the other as being the cause on the balance of probabilities. It was accepted in the course of argument on behalf of the appellant that, as a matter of principle, if there were only three possible causes of an event, then it was permissible for a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of probability and concluded that one was more probable than the others, then, provided those were the only three possible causes, he was entitled to conclude that the one he considered most probable, was the probable cause of the event provided it was not improbable."
19. The following passage appears in Walker and Walker: "... an onus will not be satisfied by leading evidence which is more probable than that led by the opponent, but nevertheless improbable in itself. The court must be satisfied of the probability, inherent and relative, of what is led in evidence by the party who carries the onus of proof on that issue." (Walker & Walker, The Law of Evidence in Scotland, 3rd edn, para. 4.2.1).
20. The following propositions may be drawn from these authorities:-
20.1. The Court must be satisfied that a particular proposed cause really is more likely than not to be the cause. It is not enough if all that has been done is to establish that a particular proposed cause is the least unlikely cause.
20.2. The Court should always keep in mind that it has the option of holding that the cause has simply not been proved. In a case such as the present that is a live option.
20.3. The Court cannot logically hold both that a proposed explanation is improbable and that it is also the probable cause.
21. The question of whether or not a particular cause is or is not improbable is not, however, a conclusion which should be drawn in the abstract, but should be addressed in the context of the evidence in the particular case. As Mr. Mortimore observed "Rare events happen"[3421]. Accordingly, a particular event may, considering the matter in advance, be very unlikely to occur. But after the event it may, nevertheless, be possible to conclude that this unusual event has in fact occurred. As Dr. Vince observed, in the present case, "we know, of course, that the fire occurred, so something ... a priori quite unlikely has occurred"[3422]. It does not follow that, just because all of the possibilities would a priori have been judged to be unlikely, one cannot draw conclusions, on the basis of an assessment of the evidence which does exist, as to what did in fact, on the balance of probabilities, occur.
22. It would be wrong to interpret and apply The Popi M in such a way that, as soon as one of the adminicles in a circumstantial case indicates that the proposed event is unlikely (even very unlikely), that explanation is ruled out of court, irrespective of the strength of the inferences which fall to be drawn from the other circumstances. That would be inconsistent with the nature of a circumstantial case, which involves balancing the inferences to be drawn from all the relevant circumstances. It may be noted that in The Popi M, there would appear to have been no positive evidence in favour of the submarine hypothesis at all: see Bingham J's opinion at [1983] 2 Ll Rep. 235.
23. In the present case, if one were to consider the HSL experimental work on its own, one would conclude that ignition by way of a spark generated at an earth fault at Cable V (or, indeed, by one of the other recognized potential mechanisms of ignition attributable to insulation failure)[3423] was very unlikely indeed. Ignition by a spark generated by such a fault would require either ignition of a solid material - something which was not achieved in the experimental work and which, for reasons apparent from the HSL report and Dr. Jagger's evidence, may be regarded as a very remote possibility - or a release of an aerosol or liquid - something which can happen but which would be an extremely rare event.
24. The following propositions, if accepted, would entitle the Court to conclude, nevertheless, that this was indeed the cause of this fire:
24.1. There was arcing at the Cable V knockout.
24.2. The arcing at the Cable V knockout preceded the fire but occurred after the last use of the washing machines.
24.3. Arcing is a recognized potential source of ignition.
24.4. A fire in fact occurred in the vicinity of the distribution board.
If the Court were to accept those propositions, the Court may take the view, in a situation where there was undoubtedly combustible material available, but it cannot be known precisely what fuel was ignited and how it came to be ignited, that some very unlikely concatenation of circumstances such as to cause ignition did occur. Otherwise one would be driven to accept the extraordinary coincidence that an event which it is known can cause fire (namely arcing) occurred shortly before a fire which did in fact occur in the vicinity of the arcing event, but that nevertheless some other unknown event for which there is no evidence was in fact the cause of the fire.
Mechanisms involving human action
25. A mechanism involving human action, whether deliberate or negligent, can be excluded for the following reasons:-
25.1. It may be concluded that at all relevant times the cupboard doors were in the positions shown in Photograph 16 of Pro 1454 - i.e. with the left door closed and the right door slightly ajar. If that is correct, it is extremely difficult, if not impossible, to see how a source of ignition could have been deposited by human action at the location behind the left hand door where the fire started.
25.2. Yvonne Carlyle passed along the corridor near the cupboard at a point in time very close to the time of ignition. She did not report seeing anything out of the ordinary. The locations of the various members of staff were accounted for at the relevant time.
25.3. There is no evidence of any intruder being in the building during the night and there is no evidence of deliberate fire-raising.
25.4. None of the staff smoked anywhere outside certain specified areas. The residents who smoked were all accounted for. Standing Yvonne Carlyle's evidence, one may exclude some unknown activity by one of the "wanderers".
The cupboard doors.
26. On the basis of forensic evidence, it may be concluded that when the fire started, the southern door of the cupboard was closed and secured and the northern door was slightly ajar[3424]. At the start of the fire the position of the doors was (derived from the forensic evidence) as shown in Photograph 16 (p. 140) of Pro 1454.
27. It can properly be concluded that the cupboard doors had been in this position since about midnight. This conclusion is drawn on the basis of the following evidence.
27.1. At about midnight Yvonne Carlyle went to the cupboard to retrieve some white roll. The right hand door was ajar - "just slightly opened". Ms Carlyle put her hand in and took out some white roll. She left the door ajar[3425].
27.2. There is a striking correlation between Ms Carlyle's description of the state of the doors as she left them and the state of the doors as they were at the start of the fire,
27.3. Each of the four members of staff on duty that night was asked about the cupboard and, on the basis of their evidence, the last occasion on that night when a member of staff went into the cupboard was that spoken to by Ms Carlyle and mentioned above.
28. If that conclusion is properly drawn, it may be regarded as an important adminicle of evidence supporting the proposition that the fire (which started low down behind the left hand door, which was on this hypothesis closed) was electrical in origin.
28.1. For reasons already outlined, ignition occurred at or about 04.25 am. Although a fire may smoulder prior to ignition for some considerable time[3426], in the circumstances pertaining within cupboard A2 (and in particular because of the presence of the smoke detector in the ceiling of the cupboard) it is unlikely that there could have been a smouldering fire for any significant length of time without activating the smoke detector within the cupboard[3427].
28.2. The fire started low down on the southern side of the cupboard - i.e. behind the secured lefthand door of the cupboard[3428]. If it is correct to conclude that the lefthand door was indeed secured when ignition occurred, in order for the ignition to have been introduced by human intervention one has to postulate the source of ignition (e.g. discarded smokers' materials) being introduced into the bottom lefthand corner of the cupboard[3429]. This would have involved someone discarding such an object from the centre of the cupboard to the left hand side behind the left hand door[3430]. With the righthand door in the position shown in Photograph 16 of Pro 1454 it is very difficult if not impossible to envisage how this could have occurred.
Yvonne Carlyle's evidence
29. That conclusion is further reinforced by other evidence, in particular the evidence of Yvonne Carlyle. For reasons already outlined, it may be concluded that ignition occurred at or about 04.25 am[3431]. At or around the time of ignition (perhaps very shortly before), Yvonne Carlyle went to the sluice directly opposite the cupboard. She did not report seeing or smelling anything out of the ordinary in the corridor at that time.
30. The other members of staff on duty that night are all accounted for at the relevant time. Brian Norton was attending to Mrs. McAlinden in the Rose Room. Isobel Queen and Irene Richmond were downstairs attending to Nana Murphy.
No evidence of any intruder
31. There is no evidence of any intruder having been in the building during the night. The doors at the main entrance and the fire exit doors (which were the only doors into the building) were always kept locked[3432].
No evidence of deliberate fire-raising
32. No evidence of any accelerant was found[3433].
Smoking
33. The absence of physical evidence of smokers' materials in the cupboard does not exclude this as a potential cause. If a fire is started by a cigarette or match, the cigarette or match will have been destroyed by the fire[3434].
34. It can however be concluded, on the basis of the evidence set out further below, that no one who smoked or who had access to smoking materials smoked in the area of the cupboard during the relevant timeframe.
35. The initial ignition was at or about 04.25 am[3435]. At about this time Yvonne Carlyle went to the sluice directly opposite cupboard A2. She saw and smelled nothing out of the ordinary. She herself did not smoke in the vicinity of the cupboard that night[3436].
36. Even if one were to allow a longer potential timescale from ignition to alarm, it may be concluded, on the basis of the evidence described in the following paragraphs, that no one who smoked or who had access to smoking materials smoked in the area of the cupboard. Dr. Lygate expressed the view that, if the fire was caused by discarded smokers' materials, this would have occurred some time between 3.30 am and 4.28 am (i.e. within the hour before the alarm sounded)[3437].
Staff
37. None of the staff on duty on the nightshift smoked in the vicinity of the cupboard during the night.
a. Brian Norton had a cigarette downstairs before staring his shift, and otherwise smoked in the residents' smoking room[3438]. Yvonne Carlyle did not see him smoking anywhere apart from the residents' smoking room[3439]. When asked if he had smoked in any other part of the building he said that he had not[3440].
b. Yvonne Carlyle had a cigarette before she started work in the staff smoking area downstairs. During the course of the night, she smoked in the smoking room off the Rose Lounge. After the fire she had a cigarette outside the kitchen door. She did not smoke anywhere else in the building that night[3441].
c. Isobel Queen was a social smoker but never smoked at work[3442].
d. Irene Richmond did not smoke[3443].
38. Standing the evidence of each of Mr. Norton and Ms. Carlyle that they did not smoke in any part of the building other than the specific areas identified in their evidence, the Court should not conclude that the discard of smoking materials by a member staff was responsible for this fire. In effect, that evidence excludes the discard of smoking materials by staff as a potential source of ignition.
39. In any event, the reaction of staff to the fire alarm - as seen on the CCTV footage - tends to support the view that none of them had knowingly done anything which was liable to start a fire[3444].
40. It follows that Dr. Lygate's approach to this fire falls to be rejected.
Residents who smoked
41. Only three residents smoked. These were Tom Wallace, Stevie Fanning and Jim Daly[3445].
42. Their rooms were all on the lower floor: Tom Wallace in room 31; Stevie Fanning in room 33; and Jim Daly in room 26[3446]. Room 26 was next to Nana Murphy's room; room 31 was opposite that room. Room 33 was just round the corner[3447].
43. It may be concluded that none of these three residents was out of his bedroom during the night.
a. All of them were in their rooms when Mr. Norton and Ms Carlyle evacuated the residents from the lower floor[3448].
b. Statements were taken from each of Mr. Fanning[3449] and Mr. Wallace[3450] after the fire. Each of them refers to going to bed, and to being woken up by staff. Neither statement contains any indication that either of them was up during the night.
c. Each of these three men could mobilise only with a walking aid, and would have needed to take the lift to go upstairs[3451]. Mr. Wallace could mobilize with a walking stick, but would take 5-10 minutes to go upstairs from his room[3452]. Staff were in and around Nana Murphy's room for a period of time before the fire started and did not speak to any of these residents being up or out of his room.
d. Of the three, only Mr. Wallace was allowed to keep his own cigarettes and lighter[3453]. Cigarettes were kept for Mr. Daly and Mr. Fanning in the office[3454]. Although Mr. Fanning had on at least one occasion some time before the fire been given cigarettes and a lighter by a visitor, these would be taken away from him by staff[3455]. There was no evidence that Mr. Fanning in fact had cigarettes and a lighter on the night of the fire.
"Wanderers"
44. Most of the residents were very immobile. A small number were "wanderers", in other words residents who might get out of bed at night. The only "wanderer" who was seen out of his or her room on the night of the fire was Mrs. MacLachlan. She was not a smoker. There is no evidence that she could have had access to anything which would be a source of ignition. If it is correct that the cupboard doors had not moved from the time that Yvonne Carlyle left the righthand door ajar until the fire broke out, one may exclude her going into the cupboard. She was in any event taken back to her room some time before ignition and, following the fire, was rescued from her bedroom.
Possible mechanisms involving the electrical installation
45. The location of the fire relative to the electrical distribution board makes the electrical distribution board a suspect as the source of ignition. Electrical equipment can, for reasons already explained[3456] be a source of ignition. The fire started just below that equipment. There is no other known potential source of ignition in that general location.
46. The state of the electrical installation following the fire[3457] disclosed five potential sources of ignition[3458].
a. The Merlin Gerin circuit breaker;
b. The apparent overheating of Cable V;
c. The arcing at the upper busbar
d. The arcing at the Cable V knockout; and
e. The RCDs.
47. All of these - apart from the fourth (i.e. arcing at the Cable V knockout) - can be positively excluded for reasons detailed below[3459].
48. Certain other components were also examined and positively excluded as follows:-
a. The main power cable to the distribution board. The main power cable to the distribution board in cupboard A2 was tested and found to be in satisfactory condition (other than inside the distribution board itself). The possibility that the fire was caused by a problem with this cable can therefore be excluded[3460].
b. The ventilation controller. The patterns of damage exhibited by the ventilation controller were consistent with the effects of an external attack by fire. There were no visible signs of an incendive electrical fault involving that controller[3461].
c. The spur unit. The spur unit had been charred but its interior was relatively undamaged. This was consistent with the effects of an external attack by fire. Had the fire started inside the unit one would have expected to see more fire damage inside than outside[3462].
d. Loose or poorly made connections. None of the connections within the distribution board was loose. Overheating on these conditions can accordingly be discounted as a potential cause of the fire[3463]. In any event, as shown in the HSL work, the internal components of the distribution board did not support combustion[3464].
Exclusion of the Merlin Gerin circuit breaker as a potential source of ignition
49. The Merlin Gerin MCB can be positively excluded as a potential source of ignition[3465]:
a. The MCB was examined radiographically. This disclosed that the breaker was in the open position and that there were no obvious signs of damage to the metallic components internal to the MCB[3466].
b. This was confirmed by computer aided tomography which allowed 3-D imaging[3467]. Although this work did not show any signs of an internal fault, it was considered prudent to undertake an internal examination.
c. On 15 March 2004 Stuart Mortimore opened up the circuit breaker[3468]. These investigations disclosed that the MCB had no internal fault or defect[3469]. There was no evidence of any heating effects at any location where the current flowed through the breaker or of any internal arcing activity which would have caused concern[3470].
d. The use of a Merlin Gerin circuit breaker within a MEM distribution board presents the possibility that the contact area between the circuit breaker and the busbar was too low for the current being carried, creating conditions for high termperature to be generated at the point of connection. However, in the reconstructed distribution boards used in the HSL work, the electrical resistance at the terminals was sufficiently low not to cause overheating. In any event, as shown in the HSL work, the internal components of the distribution board would not support combustion. This mechanism can therefore be discounted[3471].
50. The damage sustained by this MCB as compared with the other MCBs[3472] may readily be explained by the fact that they were made of different types of plastics, with different properties[3473]. In the glow-wire tests undertaken by HSL, the response of the two types of MCB was markedly different. In short, in these tests, a MEM MCB ignited at a higher temperature than a Merlin Gerin MCB and the fire went out more quickly[3474].
Merlin Gerin MCB
i. At temperatures between 556 degrees and 674 degrees Centigrade, the component melted and the wire penetrated into its body; at about 767 degrees, the plastic caught fire and flamed for about 10 seconds but there were no drips; the flame was not self-propagating[3475].
MEM MCB
ii. At about 754 degrees Centigrade, the switch lever flamed immediately but the MCB body showed little penetration up to 967 degrees Centigrade, there was little smoke, no charring and no ignition[3476].
Furthermore, a flame impingement test undertaken by HSL, in which a MEM and Merlin Gerin MCB, mounted side by side, were subjected to flame, produced a pattern of damage similar to that exhibited by the circuit breakers within positions 9 and 10 of the lower row of the incident distribution board[3477].
51. Although there was no evidence of any internal fault or defect in the MCB, there was fairly severe pitting to the surface of the contacts internal to the Merlin Gerin MCB. This can be seen in Photograph 55 (p. 179) of Pro 1454 and Pro 936Z. The damage to the surface of the contacts was consistent with electrical arcing activity and indicated that the circuit breaker had, at some time, tripped under duress - i.e. to break a large current, such as would be generated in the event of a short circuit[3478]. One would expect the MCB to have responded in this way in the event of a short circuit at the point where Cable V passed through the knockout. The likely explanation for the pitting observed was the arcing activity which had occurred at Cable V where it passed through the knockout[3479].
Exclusion of overheating of Cable V as source of ignition
52. Although no satisfactory explanation could be identified for the melting of the bitumen felt which was lying on top of Cable V in the loftspace[3480], overloading of Cable V can be positively excluded as a source of ignition[3481].
a. There were no internal defects or electrical discontinuities in Cable V[3482].
b. During the normal operation of washing machines, Cable V would never reach a temperature at which it might be thermally damaged[3483].
i. The cable was rated to operate continuously at 70 degrees Centigrade[3484]. In tests undertaken at the Health and Safety Laboratory, the cable only melted and began to smoke at about 190 degrees Centigrade[3485].
ii. The maximum current which would be drawn through Cable V by the washing machines in the condition in which they existed at the time of the fire (i.e. with one heating element of the Minett not working) was 31.1 amps.
iii. The maximum current which would be drawn through Cable V by the washing machines (in circumstances where both heating elements of the Minett were working) was 40.6 amps.
iv. Apart from the open circuit on one of the heating elements, there was no other fault in the Minett which would have affected the current drawn through Cable V[3486]. There was no defect or fault in the 903 which would have affected the current drawn through Cable V[3487]. There were no defects in the wall mounted switches in the laundry[3488].
v. When current at 31 amps was drawn through Cable V, the temperature in the cable rose with time, until, after about 50 minutes, it reached a steady state of about 53 degrees Centigrade[3489]. In the ordinary operation of the washing machines, there would never be a period when the heating elements of both machines would be on for a period of 50 minutes[3490].
vi. When current at 40 amps was drawn through Cable V, the temperature in the cable rose with time until, after about 46 minutes it reached 67 degrees[3491]. 46 minutes was longer than any period during which the heating elements of both machines would be likely to be on at the same time[3492].
vii. Only when current at 60 amps was being drawn through Cable V would it begin to soften and flow. Only with 80 amps being drawn through the cable did the cable reach a point when it was melting and beginning to smoke[3493]. These currents exceeded by a considerable margin any current that would in fact have been drawn through the cable under normal operational conditions[3494].
viii. The tests in which these findings were established were undertaken in a laboratory with an ambient temperature of between 23.5 and 26 degrees[3495]. In the context of a loftspace, where the ambient temperatures on a hot day could be higher, there might be circumstances when the temperature of the cable might exceed 70 degrees Centigrade, but only for very short durations and not to the extent that the cable would be damaged[3496].
c. If the two strands of Cable V which were found to be discontinuous had been cut before the fire, this would have reduced the cross-sectional area of Cable V at that location, but any additional heating effect would have been insignificant[3497].
Exclusion of arcing at the busbar as a potential source of ignition
53. Arcing is of significance in the context of fire investigation for two reasons: (i) arcing is a potential cause of fire; and (ii) the point at which a circuit first fails is indicated by arcing activity, and this may point to the area of fire origin even if the arcing did not cause the fire. But if one finds arcing in the context of a fire, one requires to address whether the arcing was a consequence of the fire, or a cause of the fire, or indeed whether it merely preceded or occurred after the fire[3498].
54. Arcing is very prevalent in a fire environment[3499]. Arcing can occur as a result of a fire. If the effects of fire degrade the insulating materials between two insulated conductors which are in close proximity, arcing may occur:
a. The conductors may come into contact with one another.
b. Current may be conducted through the charred remains of the insulation[3500].
c. The fire itself may produce ionized gases through which arcing may occur once the insulation has been degraded[3501].
55. It may be concluded that the arcing at the busbar occurred after the fire started, and indeed may be inferred to have been caused by the fire[3502]. It may therefore be excluded as a potential source of ignition. The key pieces of evidence here are: (a) the conclusion which may be taken from Mrs. Burns' account that she switched on her ceiling light (which would have taken its power from this busbar) after the fire started; and (b) the evidence to the effect that the extraction system was still operating after the fire started. These are discussed more fully at subparagraphs f and g below. The evidence was that the arcing seen at this busbar would have caused the mains fuse to fail, which would have discontinued any power supply to the distribution board (and thus to Mrs. Burns' ceiling light and to the extraction fan): see subparagraphs d and e below. The conclusion, which falls to be drawn from that evidence, that the arcing on this busbar occurred after the fire had started (and therefore did not ignite the fire) is consistent with other considerations, set out in subparagraphs a to c below.
a. There was evidence that the plastic busbar cover was in place[3503]. Until the plastic busbar was sufficiently degraded or damaged by fire, this would have separated the busbar from the core. There was also evidence that the earth wires had been sleeved with green and yellow sleeving[3504].
b. These layers of protection could have become compromised by the fire in such a way as to give rise to arcing[3505], but it is difficult to see how they could have become so compromised in any other circumstances[3506].
c. In experiments at the HSL, it proved difficult to reproduce this particular fault. In order to generate similar damage to that seen in the incident busbar, it was necessary to increase the amount of energy fed to the fault. The amount of damage can, however, be explained by a longer-lasting fault, such as could be explained by the circumstances of a fire[3507].
d. Arcing of the extent observed at that location would cause the main fuse for the distribution board to blow[3508]. The main fuse had indeed blown[3509].
e. Once that fuse broke, there would have been no supply of power to the distribution board or, consequently, to any appliance served by the board[3510].
f. Mrs. Burns switched on her ceiling light after she had been woken (and after she had smelled smoke). This light probably took its power from the upper busbar of the distribution board in cupboard A2. There was accordingly still power to the board at that time. It follows that the arcing at the busbar occurred after Mrs. Burns switched on her ceiling light[3511].
g. The fan for the ventilation system took its power from the distribution board. It may be inferred that the fan continued to operate for some time after the fire started[3512].
i. Staff passed through the central stairwell after the fire alarm sounded going up and downstairs, without seeing anything untoward.
ii. It was only at about 04.36 am that staff saw smoke filling up the central stairwell from the ventilation duct[3513].
iii. Had the power supply to the fan failed at or about the time of ignition, it is likely that smoke would have been seen at the stairwell during the earlier journeys.
iv. It would have taken approximately 2 to 4 minutes from failure of the fan to smoke reaching the liftshaft[3514].
v. While the fan operated, smoke was drawn out of the ventilation system to the roof at a point in corridor 3.
vi. It followed that as long as the fan operated smoke from a fire in corridor 4 would not be seen in the central stairwell[3515].
vii. There were various possible explanations for the failure of the extract fan: the fan controller could have been damaged by fire; the circuit breaker to the fan controller might have tripped in response to heat; the fan itself might have tripped in response to high heat; or the arcing to the busbar could have fused the whole distribution board. Mr. Mortimore was inclined to think that the most likely explanation was the tripping of the circuit breaker serving the fan controller[3516].
viii. Whatever the explanation for the fan ceasing to operate, the arcing at the busbar did not occur before then.
Exclusion of the RCDs as potential sources of ignition
56. The residual current devices did not exhibit any defects or features which would have contributed to the ignition of the fire[3517].
56.1. There were no external signs of an incendive electrical fault. Specifically the terminals did not exhibit any signs of electrical arcing activity[3518].
56.2. The RCDs were scanned by computer aided tomography and were also opened up so that the internal components could be examined[3519]. There were no internal signs of distress or fire and the terminals did not have any signs of arcing damage or localized overheating[3520].
56.3. The upper terminal of one of the RCDs was found to be loose such that the cable came out of the terminal when the RCD was moved[3521]. A loose terminal can produce overheating. However, there was a furrow in some fused plastic on one of the terminal faces which suggested that a wire had in fact been present. There was no heating damage which could not be attributed to the fire.[3522]
A fault where Cable V passed through the knockout as a potential source of ignition
57. Of the potential sources of ignition disclosed by the state of the electrical installation following the fire and identified at paragraph 36 above, that leaves the question of a fault where Cable V passed through the knockout. There are three possible mechanisms whereby, in principle, a fault at Cable V could have resulted in ignition: (a) overheating of the cable due to loss of cross-sectional area; (b) a high resistance fault; and (c) a low resistance fault giving rise to arcing.
58. Loss of the two strands of the live conductor would not have been sufficient to cause the cable to overheat significantly by reason of the reduction in cross-sectional area[3523].
59. If a high resistance fault had developed between cores within Cable V or between cores of Cable V and the edge of the distribution board, it is likely that this would have caused the insulation to degrade further and the current to increase. In these circumstances, the Merlin Gerin circuit breaker would probably have tripped before ignition[3524].
60. This leaves an earth fault giving rise to arcing as the remaining candidate.
Arcing at the Cable V knockout as a potential source of ignition
61. Arcing at the Cable V knockout could readily be explained as having occurred as a consequence of the fire[3525]. However, there is a circumstantial case which supports the proposition that the arcing at the Cable V knockout was the cause of the fire. The following positive adminicles of evidence (each of which will be discussed more fully in the following paragraphs), taken together, support that conclusion.
61.1. The arcing at the Cable V knockout preceded the fire. This conclusion may be drawn from the following adminicles (which are further examined below):-
61.1.1.The arcing at the Cable V knockout preceded the arcing at the busbar[3526].
61.1.2. The arcing at the Cable V knockout occurred after the last time the washing machines were used[3527].
61.1.3. Had the distribution board been exposed to a fire from below caused by some other factor the Merlin Gerin circuit breaker would probably have tripped before arcing would have occurred at the Cable V knockout[3528].
61.2. Two of the three layers of insulation which should have been in place to prevent just such an event occurring were missing[3529]:-
61.2.1. There was no grommet protecting the edge of the knockout.
61.2.2. The outer cable sheath was outside the distribution board.
61.3. In the circumstances of the distribution board, and in the absence of those two layers of insulation, it is likely that the integrity of the further layer of insulation round the live conductor would have become compromised[3530].
61.4. Arcing at the Cable V knockout would be likely to generate sparks which could readily escape from the front and back of the distribution board and fall onto materials below the board - the very location of the fire.
62. The fuel which was initially ignited is unknown. There was a quantity of material within the cupboard which could, in the right conditions, have been ignited.
62.1. Solid flammable materials. Although it would have been extremely difficult indeed for such sparks to ignite solid flammable materials, the possibility cannot be completely excluded.
62.2. Such a spark would very readily ignite a flammable atmosphere within the cupboard and this could in turn ignite solid flammable materials. A release from one of the aerosols within the cupboard, though an extremely unlikely event could account for such a flammable atmosphere.
62.3. Solid flammable materials soaked in a flammable liquid. This would more readily be ignited than solid materials which had not been soaked in a flammable liquid. Broken pieces of a bottle of ethanol-based bodywash were found within the cupboard in a state which was consistent (though not unequivocally so) with the bottle having been broken before the fire, although it would be difficult to postulate a mechanism whereby this came to be broken in advance of the fire. Further, if there had been a release from an aerosol, this could have resulted in solid materials becoming soaked in the flammable contents of the aerosol.
The arcing at the Cable V knockout occurred before the arcing on the busbar
63. For arcing to have occurred at the Cable V knockout, Cable V must have been live[3531]. Once the arc at the busbar occurred, power to the distribution board would have been lost. Cable V would no longer have been live and no arcing could have occurred at the cable V knockout[3532]. It follows that the arcing at the Cable V knockout occurred before the arcing on the busbar[3533].
The arcing at the Cable V knockout occurred after the last time the washing machines were in use
64. It is unlikely that the arcing at the cable V knockout occurred before the last time when the washing machines were working[3534]. The washing machines were working during the backshift on 30 January[3535]. It follows that the arcing at the cable V knockout occurred sometime between that time and the arcing at the busbar.
It is likely that exposure to the fire in cupboard A2 would have caused the Merlin Gerin circuit breaker to trip before it would have caused arcing at the Cable V knockout
65. According to Mr. Mortimore, hot gases generated by a fire low down on the south side of cupboard A2 would go approximately vertically up the southern wall of the cupboard. On striking the base of the distribution board, they would be deflected preferentially up the front and sides of the board rather than up the back of the board. There would be relatively little passage of flame or heat up the back of the board[3536]. That this was indeed the case is supported by the relative lack of charring to the backboard behind the distribution board, and the survival of paint on the back of the distribution board itself[3537]. Any heat attack on the board would be likely to be from the front towards the back[3538].
66. The precise temperature at which the MCB would trip would depend on its design, but would, according to Mr. Mortimore, be much less than the temperatures typically attained in a fire[3539].
a. Furthermore:-
i. One would expect the lower row of circuit breakers to operate in response to heat before the upper row of circuit breakers responded[3540].
ii. One would expect such a fire to cause arcing at the busbar (which was to the front of the board) before it caused arcing at the Cable V knockout[3541].
iii. One would expect such a fire to cause the Merlin Gerin circuit breaker (which was in the lower part of the board) to trip in response to the heat of the fire before the heat at the cable V knockout would be sufficient to cause arcing at that point[3542].
b. Mr. Mortimore expressed opinions to these effects on the basis of his experience and expertise. He was, of the experts who gave evidence, uniquely qualified to bring to bear both electrical engineering and fire investigation expertise. Dr, Lygate acknowledged that in relation to the question of whether the circuit breaker would be likely to trip before arcing at the Cable V knockout (or vice versa), one would need to ask someone who has both electrical engineering experience and knowledge of fire science[3543].
c. There is evidence that, during the fire at Rosepark, the upper row of circuit breakers did indeed respond only at a relatively late stage in the fire. Mrs. Burns' account was to the effect that she switched on her ceiling light[3544] (which would have been served from the upper row of circuit breakers). If one were to take the view that Mrs. Burns' bedside light had ceased to work by reason of the circuit breaker tripping in response to the fire, then this would indicate that the circuit breakers on the lower busbar did indeed trip before the circuits fed from the upper busbar were de-energised whether by reason of the arcing at the upper busbar, or by reason of the circuit breakers on that busbar tripping[3545]. The Cable V knockout was above the upper row of circuit breakers.
d. Mr. Mortimore's opinion that the Merlin Gerin circuit breaker would be likely to trip before the fire would cause arcing at the Cable V knockout finds some support from the HSL cupboard test. In this test, the fire was terminated using fire extinguishers after it had been burning for approximately 20 minutes and, on examination, the test cupboard looked similar to the cupboard at Rosepark following the incident. The circuit breakers failed at about 18 minutes[3546], but there was no sign of electrical arcing activity on any of the cables at the back of the distribution board[3547]. Although the timescales of this test were very elongated compared with those of the BRE test (and, on the basis of the BRE test, the likely duration of the fire at Rosepark itself), this evidence provides some support for the proposition that the circuit breakers would trip before arcing would occur at the knockout.
e. There was no evidence of arcing involving any other cables at the Cable V knockout. Although the effects on other cables would depend on the way that the sheathing and insulation had been cut back on those cables, if the heat of the fire at the cable V knockout had been sufficient to cause arcing at Cable V (in advance of the whole distribution board being fused by the arcing at the busbar) one might, according to Mr. Mortimore, have expected more than one cable at that location to have been affected by arcing[3548].
f. Mr. Mortimore regarded these considerations as the determinative factors. He stated that he could not sensibly explain the arcing activity at the Cable V knockout in terms of an external fire caused by human intervention[3549]. He regarded this consideration as sufficiently compelling to reject the hypothesis that the fire could be attributed to careless discard of smoking materials or some unknown action by a "wandering" resident[3550].
Absence of protective insulation
67. There should have been three layers of insulation between the live conductor of Cable V and the steelwork at the back of the distribution board. The live core should have had a layer of red insulation. That should have been enclosed in the outer grey sheath, to protect the inner core at the location of the knockout. And there should have been a grommet around the edge of the knockout itself to protect the cables from the sharp metal[3551]. If an arcing event took place at this location before the fire each of these layers must have been absent or compromised in some way[3552].
68. Two of these layers of protective insulation were not in place.
a. There was no grommet on the Cable V knockout[3553].
b. The edge of the outer sheath was outside the distribution board, so that it did not protect the inner cores of the cable[3554].
69. The very purpose of these two layers of protective insulation was to protect the inner core against the risk of damage against the edge of the knockout[3555]. David Millar, former Head of Technical Services with the Electrical Contractors' Association of Scotland, described the purpose of a grommet in this way[3556]:-
"... the cables are passing through sharp edges of metal and the Wiring Regulations ... require that these sharp edges should be protected by some means ... rubber grommets or safe edging they are called, strip edging, an edging strip that is put round ... to stop the edge of the metalwork cutting into the sheath of the cable."
In explaining advice that such a deviation would require to be rectified as soon as possible, he said this[3557]:-
"... there is the possibility that the, if the metalwork is actually connected to earth and ... one of the cables ... was being abra[d]ed by the sharp edges then it could actually cause an earth fault and a high current could flow ... between the cable and the switchgear and they could, in fact, cause a fire. ... there would be a high current flowing which would cause sparking probably and then it could cause fire if there was anything to go on fire close to that."
In the absence of these layers of insulation it is likely that, over the life of Cable V, the PVC insulation of the live conductor of Cable V would have become compromised.
70. For arcing to have taken place at the Cable V knockout, the red PVC sheath round the inner core would require to have been (or to have become) compromised so that the live conductor and the earthed knockout could come into contact[3558]. PVC is relatively resistant to the effects of abrasion or cutting[3559]. Any explanation as to how the insulation became or could have become compromised needs to be consistent with: (a) the apparently normal operation of the system for a period of some twelve years[3560]; and (b) failure ultimately occurring at a time some hours after the washing machines had last been in operation.
71. A number of possible mechanisms of failure (or potential contributory mechanisms of failure) were identified in evidence.
a. Damage to the cable during installation[3561].
b. Thermal stressing, involving movement of the cable as its temperature changed[3562].
c. Mechanical vibration, for example as cupboard doors were opened and closed[3563] or people walked up and down the corridor[3564].
d. Tracking - i.e. the flow of current across the surface of the insulation from the point of damage by reason of the presence of dirt, dust or moisture[3565].
e. If one has a very thin layer of insulation and puts a voltage across it, that in itself may degrade the insulation over a period of time[3566].
f. Natural ageing to a certain extent could also play a part[3567].
72. These potential mechanisms of failure are not mutually inconsistent[3568]. Failure could have resulted from a combination of factors, for example partial degradation of the insulation during installation, followed by some other factor or factors such as thermal expansion and contraction and tracking or mechanical vibration[3569]. Mr. Mortimore expressed the view that it was not appropriate to seek to select any particular mechanism, given the uncertainties[3570]. Whatever the mechanism of failure of the PVC insulation, arcing would not have occurred had there been a grommet in place and the outer sheath had been protecting the cable as it entered the knockout - in other words if there had not been poor installation[3571].
Thermal effects
73. Both theoretical analysis and experimental work support the conclusion that - if the PVC insulation of the live conductor was resting or pressing against the edge of the knockout, and if the knockout had no grommet or other form of cable protection fitted, and if the edge of the knockout had a sharp edge or burr - it is highly likely that the metal edge of the knockout would have cut into the PVC insulation and that, over an extended period of time, this would cause an earth fault between the live conductor and the metal edge of the knockout[3572]. Mr. Madden expressed the view that, given the extended period of time and given those assumptions, "the failure of the insulation by that mechanism was a high probability event"[3573].
74. For reasons set out further below[3574], the Court may find as fact:-
a. that the PVC insulation of the live conductor was pressing against the edge of the knockout;
b. that the knockout had no grommet or other form of cable protection; and
c. that the edge of the knockout was such as to be capable of damaging the insulation of the live core.
75. In these circumstances, it is likely that, over time, the insulation would become compromised by reason of thermal movement.
Thermal effects: theoretical considerations
76. Copper expands and contracts as it heats up and cools down[3575]. As current flows through a copper conductor in ordinary operation, the conductor will heat up. The relationship between temperature and current is not a linear one, but any increase in current would result in some temperature rise[3576]. As the temperature of a copper conductor rises, the conductor would expand slightly. When the current drops and the temperature falls, the conductor would shrink again[3577]. The magnitude of the expansion is determined by the change in temperature, the length of the conductor and the coefficient of thermal expansion of copper[3578].
77. In the context of a core comprising a seven wire strand, one would expect - by reason of the way that the core is manufactured - the PVC insulation to move along with the conductor[3579]. If the insulation of such a core should be pressed against a fixed metal edge, movement of the conductor would produce an abrasion effect or a cutting effect[3580]. Any movement would present the possibility of abrasion[3581]. Whether there would be abrasion or cutting or a combination of the two would depend on the nature of the edge. A very sharp edge would cut the cable, whereas a blunter edge would be inclined to abrade it[3582].
78. Over its lifetime, Cable V would have been subjected to repeated expansion and contraction as a result of changes in the current drawn by the washing machines which it served[3583]. In the course of each shift, the switching on and off of the heating elements in the 903 and the Minett had led to very significant changes in the current flowing in the cable[3584]. The magnitude of the current change would vary as the heating elements of the two machines came on and off. It could readily be envisaged that from time to time the heating elements of the two machines would coincide, drawing (even with only one of the elements of the Minett working) a current of 31 amps.
79. As the current drawn by the washing machines changed, the temperature of the copper conductor within Cable V also changed. As that happened, the conductor would have expanded and contracted[3585] and the insulation of the cable would have moved along with that expansion and contraction. The magnitude of the movement would vary according to the wash cycles used from time to time, from perhaps 0.1 mm to more than 0.4 mm[3586]. If the insulation was indeed pressed against the metal edge of the distribution board, over time, movement of this sort would be likely to result in the insulation becoming abraded[3587]. Over time, this could result in the metal edge penetrating all the way through to the conductor itself[3588].
80. In addition to the thermal effects of changes in current drawn through Cable V, there would have been thermal effects attributable to changes in ambient temperature in the care home. In particular, the loft was insulated from the rest of the home and was subject to extremes of temperature. The temperature variations in the loft space would be transferred to the cables running through the loft space, and the copper would expand and contract accordingly[3589].
Thermal expansion: experimental work
81. These effects were confirmed experimentally by Mr. Madden[3590]. A 2 metre length[3591] of 6 mm2 twin and earth cable was clamped at one end on a test bench. The cable was covered with loft insulation. A current of 41 amps was passed through the cable, 8 minutes on and 30 minutes off, continuously 24 hours a day between 24 December 2004 and 6 January 2005. A core covered with red PVC insulation was ran across a 1 mm thick metal edge that had been sharpened slightly to create a burr. A 250 gram weight was suspended from the wire to make sure that the wire was pressing on the edge. The ambient temperature and the temperature on the cable sheath beneath the mineral wool were measured. During each cycle the cable increased and deceased in temperature by about 15 degrees Centigrade. Each temperature cycle caused the cable to expand and contract by 0.4 mm at the position where the red insulation rested on the brass plate. In the event that the length of the "on" part of the cycle was longer than 8 minutes, the expansion would be greater. The movement varied with the current passing: at 30 amps it was 0.17 mm; at 20 amps it was 0.06 mm; and at 10 amps it was 0.01 mm. Significantly, the expansion and contraction was transmitted to the insulation, which moved backwards and forwards across the fixed metal edge in a sawing motion. This movement resulted in abrasion of the insulation. By the end of the test, the metal had penetrated into the insulation significantly.[3592].
82. Mr. Mortimore stressed the limitations of Mr. Madden's exercise, particularly on the basis that it did not replicate the circumstances at Rosepark[3593]. Dr. Lygate, in his report, also voiced criticims of the exercise on the same basis[3594]. The experimenters had in fact deliberately decided not to seek to replicate the actual situation, given the significant uncertainties as to the precise details of the situation at Rosepark. The purpose of the exercise was to confirm that the insulation covering the core would, in fact, move in response to thermal effects and that, in these circumstances, the insulation could, if pressed against a metal edge, become abraded[3595]. Provided appropriate caution is exercised in extrapolating from the results, the experiment provides useful confirmation of the predictions of theory (as expressed in particular by Mr. Reed) in these regards.
The assumptions
83. This mechanism of failure depends on three assumptions of fact[3596]:-
a. The PVC insulation was pressed against the metal edge of the knockout.
b. The knockout had no grommet or other form of cable protection.
c. The knockout had an edge sufficiently sharp to cut or abrade the PVC insulation of the live core of Cable V.
Each of these assumptions can be held to have been established.
The PVC insulation was pressed against the metal edge of the knockout
84. It is likely that Cable V was pressed against the metal edge of the knockout.
i. It is likely that Cable V was at least resting against the edge of the knockout[3597]. The very fact that there was arcing at Cable V implied that the live conductor was very close, if not against the edge of the knockout[3598].
ii. The arcing damage occurred on the lower edge of the knockout. In these circumstances, although it is possible that the cable was fully supported and did not exert any force on the edge of the knockout[3599], it is likely that the weight of the cable was bearing down to some extent on the lower edge of the knockout[3600].
iii. Cable V was a late addition to the installation[3601]. During installation, it would have been pushed down the back of the partition and then fished through to the front of the distribution board[3602]. There were three other cables which also passed through the upper right knockout[3603]. At the conclusion of the work, the cabling would have been pushed back[3604]. Witnesses with experience in electrical engineering could readily envisage, in these circumstances, how the cable could have ended up pressed against the edge of the knockout[3605].
The knockout had no grommet or other form of cable protection fitted
b. For reasons already explained[3606], the Court may find that there was no grommet fitted at the knockout, and that the cable sheath was not protecting the live conductor at the point where it passed through the knockout[3607].
The edge of the knockout was sufficiently sharp to be capable of cutting or abrading the PVC insulation
c. The upper right cable knockout in the distribution board in cupboard A2 presented a bare metal edge which is likely to have been quite sharp[3608]. Although there is variability in the sharpness of the edge of a knockout[3609], the physical process of creating the knockout tends to leave a sharpened edge[3610] with burrs along its edge. Where the knockout is taken away, there is no enamel paint around the edge: one is left with bare metal[3611]. In the witness box Stuart Mortimore ran his finger round one of the other knockouts of the distribution board and said this[3612]:-
"... if one looks at one of the others, which would be very similar, and runs a finger round the edge of the hole, it's fairly clear that it is pretty much 90 degrees and you are going to get a fairly sharp edge along where the metal has been punched out."
In any event, Mr. Reed - who was well-qualified to speak to the issue - ,gave evidence that even a blunt metal edge could, over time, abrade PVC insulation[3613]. Accordingly, in all the circumstances the edge of the knockout is likely to have been capable, in the right circumstances, at least of abrading cable insulation.
Damage during installation
85. The insulation of the inner core could have been compromised at the time of original lnstallation, for example by being damaged by a knife or other sharp tool during the process of installation[3614] or by being impaired as it was pulled over - or, more likely, pushed back against - the edge of the knockout[3615]. The exposure of cable insulation by inadvertent cutting as the outer sheath is cut away is a relatively common installation fault[3616]. Likewise, abrasion of PVC cable by being scraped against a sharp edge is quite a common installation problem[3617].
86. In Mr. Mortimore's opinion, it would be possible for a cable to have been damaged in the course of installation and for that cable nevertheless to continue to operate - perhaps for a long period of time - without apparent difficulty, before that damage gave rise to a short circuit or arcing[3618]. Mr. Mortimore instanced an example in which a nail had been put through a cable, without any apparent adverse effects for a time, but which subsequently started to trip because, by reason of cycling (thermal or mechanical), the nail occasionally came into contact with the live core[3619]. Mr. Madden acknowledged the possibility, if the insulation had been nicked during installation, that over a period of time dust and moisture could build up to create a tracking path between the internal live wire and through the insulation to the earthed metalwork of the distribution board, ultimately leading to failure in the form of heating and arcing activity, but, because the cable had apparently operated for some 12 years without creating a fault, preferred an explanation involving progressive abrasion of the insulation over a period of time[3620].
The insulation could fail at a time when the washing machines were not in operation
87. Generally speaking, if a fault is going to occur on electrical equipment it occurs when the equipment is in use[3621]. Ignition in the present case occurred some hours after the washing machines had last been in use. For this reason, Dr. Lygate considered arcing at the knockout an unlikely cause of the fire (although he accepted that he could not exclude it on this ground[3622]). However Cable V would, of course, have been live - and would indeed probably have been drawing some very small current - even when the washing machines were not in operation[3623]. Neither Mr. Madden nor Mr. Mortimore had difficulty envisaging mechanisms which would account for failure at a time when the washing machines were not operating. Mr. Madden put it in this way[3624]:-
"Well, my explanation for it is that the expansion and contraction effects that we have been talking about are not uniquely associated with the washing machine current flowing. My sort of impression or my vision for this is that the metal of the distribution board has migrated right into the insulation of the cable and is just on the point of failure, and then something else happens which tips it over to the point at which the insulation failure occurs; that does not have to be electrically induced thermal expansion and contraction, it could be the other forms of movement that we have been referring to which is natural vibration, thermal cycling in the building, whatever other mechanism that might have caused that final movement that causes it to tip over into the failure mode that I have been talking about. ... I understand the argument which says, well how come it did not fail at the time that the washing machines were in "on" mode. I understand that. My feeling is that I can explain it by that approach ... remember, if we believe this effect has occurred, the migration rate into the insulation is extremely low, extremely low rate of migration and I can quite see it getting to the point where it is just on the point of failure and then something happens to tip it over, and that something could be these other effects that I have been talking about."
And later in his evidence he returned to the point[3625]:
"I think it's reasonable for somebody to say well, if we're looking at expansion and contraction effects, surely the failure would have occurred while the cable was moving as a result of current loading. As I've said before, though, I think there are other effects at play here that would explain the time difference between the last wash cycle and the point at which the insulation actually failed; these other expansion and contractor and movement effects that caused that final tipping point to lead to the insulation failure.
SHERIFF PRINCIPAL LOCKHART: Just for these notes, could you just list these other matters?
THE WITNESS; Changes in night-time, daytime, temperatures and so on. And also mechanical movement, natural mechanical vibration in buildings such as this leading to slight movement of the wire against the sharp metal edge. Those are the two main mechanisms that I refer to.
...
We've got to the point where the metal has migrated through the insulation to the point at which it is just on the point of failing, and then something occurs at 4.30, or at that time, to cause that final failure. What was that? We know it's not the current flowing through the washing machines because the washing machines weren't being used. What could it have been that caused that? The two explanations are further movement as a result of temperature cycling, ambient temperature cycling, or mechanical movement caused by natural vibration."
And in re-examination[3626]:-
"In terms of mechanical conditions, what sort of thing did you have in mind? - I'm thinking about just natural vibration type effects that might cause movement between the cable and the, the edge of the knockout. For example, somebody opening the door of the cupboard, for example, may well lead to just mechanical vibration. Just disturbing, if you like, mechanically, the distribution board and the cable against it. It's just those sort of mechanical vibrations that, that are a natural occurrence in buildings.
...
Are there mechanical conditions which may occur in a building without any, as it were, human intervention? - Well I have in mind the, just the natural expansion and contractor of the building materials, for example. Buildings tend to creak as the temperature varies because of expansion and contraction of the materials themselves, just natural movements in structures leading to, what I'd term, chosen to call, mechanical vibration type effects.
Yes. Are these effects that may occur, if one thinks of a 24 hour period in January, where, well if one thinks of a 24 hour period in January are these effects that may occur as a result of things which may happen over the course of a 24 hour period? - Yes, I think just people walking down a corridor, for example, will set up vibrations.
Yes. - It's these natural vibrations that occur in structures.
Yes. - Is what I had in mind.
Can, in terms of the natural vibrations in structures, do changes in temperature, or can changes in temperature have a bearing on that? - Yes.
In what way? - Well materials expand and contract as temperature varies. Expansion and contraction of materials leads to movement."
Mr. Mortimore offered the following[3627]:-
"... if we got a gradual degradation of the insulation so effectively you've got a, electrical stresses across the cable causing it to degrade slowly, if you've got tracking building up, that could occur. It may even be the tail end of one of the contraction sequences we've been looking at in the thermal expansion and contraction that was suggestion by the gentleman from Pirelli and Mr. Madden. Equally, I suppose it could be precipitated by somebody walking up and down the corridor ..."[3628]
Given the expertise of Mr. Madden and Mr. Mortimore in electrical engineering, their evidence in this regard may be preferred to that of Dr. Lygate.
The effect of degradation of the insulation
88. If the edge of the knockout migrated through the insulation but did not come into contact with the live cable, the layer of insulation could have become so thin that current could migrate across the gap. The currents flowing in these circumstances would have been much less than those which would flow in the case of direct contact - and could be such that the circuit breaker would not trip immediately but meantime significant heat could be generated at the point of the fault. The heat could be sufficient to cause PVC to burn[3629], creating the conditions in which an arc could occur.
Arcing at the Cable V knockout would readily cause sparks which could escape from the distribution board and fall onto combustible materials below
89. An earth fault at the point where Cable V passed through the knockout could have resulted in a fire at the bottom of the southern side of the cupboard by one of the following mechanisms:-
a. Such an incendive event could have ignited plastic within the distribution board (in particular the PVC insulation itself), which then dripped down to flammable materials below the board and spread the fire[3630].
b. An earth fault would be likely to involve the ejection of molten globules of metal formed during electrical arcing from the board, and these could have ignited other combustible materials
90. The former mechanism - ignition of plastic within the distribution board dripping down onto flammable materials below - was unlikely.
a. It is difficult to generate sustained ignition of PVC cable[3631]. PVC softens at temperatures from about 80 degrees Centigrade upwards[3632].
b. The glow-wire tests by HSL on the various plastic components of the distribution board indicated that it was difficult to ignite any of those components and that, by and large, they would not support combustion[3633] and that they would only melt and flow at very high temperatures.
c. There was no evidence of any foreign combustible material inside the distribution board[3634].
d. Even when tests were done with foreign combustible materials placed inside a distribution board, this did not produce a significant fire within the board[3635].
e. There were no visible remains of runs of burnt or partially burnt plastics on the back of the distribution board[3636].
91. By contrast, under short circuit conditions within the distribution board, a current of up to 2230 amps would flow between any live conductor and earthed metalwork. This is a significant amount of current in terms of heating effects and consequential damage[3637]. Such a fault between the live conductor of Cable V and the edge of the knockout, would be likely to generate an arc causing damage to Cable V and the knockout such as was found following the fire[3638]. Arcing at the Cable V knockout would have been likely to generate sparks[3639].
92. Tests were undertaken at HSL, Buxton, in which short circuits were deliberated generated at the Cable V knockout. These tests demonstrated that a short circuit at that location would readily generate sparks or spatter. This happened, notwithstanding that these tests involved instantaneous direct contact between the live conductor and the edge of the knockout, such that the circuit breaker tripped in a fraction of a second[3640]. In other words, the presence of the circuit breaker and its operation did not prevent the generation of sparks.
93. Sparks produced by arcing at the Cable V knockout could readily escape, particularly from the rear of the board and fall down the gap between the distribution board and the backplate onto materials lying beneath[3641].
94. The HSL work demonstrated that such sparks due to arcing at the Cable V knockout could escape from the distribution board, both from the front of the board, and down the gap between the back of the distribution board and the wooden backboard[3642]. If there was in fact no blanking plate over the spare way on the lower busbar then, without the front covers, there would have been a route for sparks to escape from the front of the board. But even if both blanking plates were present, this would not have affected the ability of the sparks to escape down the back of the board[3643].
95. The video footage of the HSL tests showed how sparks would fly unpredictably from the board but generally in a downward direction. One can readily envisage sparks from an arc at the Cable V knockout falling to the very location where the fire started.
Potential fuels
96. There were plenty of combustible solid materials within cupboard A2. All the experts agreed, however, that it would have been very difficult for sparks from the distribution board to ignite solid materials and the HSL experiments gave significant support to those views[3644].
97. Such a spark could more readily ignite solid materials soaked in a flammable material, although this would still be difficult. Some colour is given to the possibility that such materials could have been in cupboard A2 by the presence of broken pieces of a bottle of an ethanol-based bodywash, soot-stained in a manner which would be consistent with the bottle having broken before or during the fire - though it would be difficult to imagine a mechanism of failiure of the bottle before the fire.
98. A spark from arcing at the Cable V knockout could readily ignite a mixture of flammable gas and air within the flammable limits[3645]. There is, however, no positive evidence that there was such a flammable atmosphere within cupboard A2. A release from an aerosol could have given rise to such a flammable atmosphere, but such a release was an extremely unlikely event.
The HSL tests
99. These propositions were illustrated by the experimental work undertaken by the HSL, in which attempts were made to ignite various materials using sparks generated by earth faults at the busbar and at the knockout[3646].
i. Both types of fault were employed. Initially a standard 80 amp fuse was used. A number of tests were carried out with paper, cardboard and plastic items, but no ignition was obtained.
ii. The fuse was replaced with re-wireable fuse of lower rating, on the basis that this would increase the spark production. Flammable sheet materials, including tissue paper and industrial paper wipes were spread on a table placed immediately below the base of the distribution board.
iii. The only ignition obtained with this test arrangement was of tissue paper during one of the simulated earth wire to busbar faults.
iv. Once such an ignition was obtained, the table height was lowered by about 350 mm and more combustible materials were added to the table. No ignitions were obtained using this arrangement.
v. Further tests were carried out with the table at a height level with the bottom of the casing but with faults at the knockout. More sparks were produced which appeared more energetic. The table was draped with various combustible materials. 118 tests were undertaken with this configuration, but no ignitions were obtained.
vi. Tests were undertaken with balls of acrylic wool at the bottom of the distribution board. 38 tests were undertaken. In many of these, sparks struck and penetrated the balls of acrylic. Some remained incandescent for several seconds. On occasion small trails of smoke were observed. In none of the tests did sustained burning occur.
vii. Tests were undertaken with pieces of paper, card, foam and carpet impregnated with acetone. An ignition of such material was obtained easily when the material was placed level with and just in front of the bottom of the distribution board but was more difficult to achieve with impregnated material placed at floor level. In only one out of 83 tests at floor level was ignition obtained.
viii. Tests were undertaken with a distribution board enveloped in a flammable gas mixture contained within a polythene bag, intended to replicate a flammable atmosphere such as would have been created by an aerosol. Ignition was readily obtained in such circumstances.
b. The HSL conclusion was expressed In the following terms[3647]:-
"Apart from ignitions of flammable gas and/or liquids, the test results have demonstrated the difficulty of obtaining ignitions and fires in several types of dry combustible materials. Since experimental conditions used were specifically devised to encourage ignitions, the lack of positive results suggest that the likelihood of an ignition is even more remote when conditions are more representative of the real situation."
Mr. Mortimore accepted those conclusions[3648]. He found it unsurprising that great difficulty had been experienced in igniting materials in the HSL tests[3649]. Dr. Vince explained that for a spark to ignite a fire it would have to vaporize sufficient solid material to form a viable flame kernel and that the chance of this happening was "very low indeed"[3650].
c. The HSL report went on to say: "Nevertheless, the possibility cannot be discounted since they are known to occur." Dr Jagger explained this statement as follows[3651]:
"The ignition of solid materials with sparks ... is known to occur. There are examples of such instances. Because we found it very difficult to do so, in fact we didn't get ignitions apart from one with tissue paper, that doesn't mean to say that they don't occur. We perhaps didn't have exactly the right conditions or we didn't do enough tests. ... Tests in the literature, or examples in the literature, often require several hundred tests before an ignition is obtained."
Mr. Mortimore agreed with this conclusion[3652]. Dr. Vince stated: "I wouldn't like to say that it's impossible, but it would be extremely difficult"[3653]. It is not disputed that, on the basis of the evidence, ignition of solid material by a spark from an earth fault at the cable V knockout falls to be regarded as an extremely remote possibility.
Solid materials soaked in flammable liquid
100. In the HSL ignition experiments, steps were taken to examine materials soaked in a flammable liquid - namely acetone. Ignition of such material was obtained easily when it was placed immediately below the distribution board. With such material placed at floor level, ignition was obtained in one test out of 83. These experiments demonstrate that ignition of such material is possible - although still difficult[3654].
101. There are possible ways in which solid material within the cupboard could have become soaked in a flammable liquid.
102. Pieces of a bottle of Bronnley Blue Poppy body splash were found on the left hand side of Shelf 3 of cupboard A2[3655]. The edges of the pieces of glass were covered with soot deposits, which meant that the breakage had occurred either before the fire or during the course of the fire or very very shortly after the fire[3656]. Had the bottle broken at some point before the fire, the contents would have poured out and, given the quantities, cascaded down the base of the cupboard. Over time the liquid would evaporate and a flammable atmosphere would develop in the vicinity of the liquid[3657]. There is however no obvious explanation as to how the bottle could have become broken before the fire, unless, perhaps, it was knocked over by a member of staff, and it may be difficult to imagine how such an event could have resulted in the bottle fragmenting while remaining on the shelf[3658].
103. If one of the aerosol cans were to have released its contents, those contents would form a cloud of liquid droplets in the atmosphere[3659]. If this impinged on a surface, one could get a surface soaked in the liquid. Over time, there would thereafter be a process of evaporation of that liquid[3660].
Flammable atmosphere
104. The HSL experimental work demonstrated that a flammable atmosphere could readily be ignited by a spark from the distribution board. Cupboard A2 contained a quantity of aerosols. A release from an aerosol such as to create a flammable atmosphere within the cupboard would be an extremely unusual event, but such an event is possible and cannot be excluded.
105. Aerosol cans contain hydrocarbons which, if released, will become gaseous. Hydrocarbon gases require to be in a certain concentration (typically 2-10%) in air to be flammable. If the fuel is too rich (i.e. above the upper flammability limit) or too lean (i.e. below the lower flammability limit) it will not ignite[3661]. A flammable concentration of hydrocarbon gas could readily be ignited by a spark or hot surface[3662].
106. The pattern of damage seen in the cupboard would not be inconsistent with an ignition of a flammable cloud of hydrocarbon gas having occurred. Mr. Martin took the view that ignition of a release from an aerosol would have caused more damage than was seen in the photographs[3663]. But Mr. Mortimore did not agree. He explained that ignition of a gas air mixture would tend to produce a very short duration "woof" which would not leave significant fire patterns and would not necessarily move the cupboard door or dislodge shelves, but could ignite other materials within the cupboard[3664]. Dr. Vince agreed[3665].
107. There is no positive evidence that any of the aerosol cans within the cupboard released their contents before the fire, and such a release, although it cannot be excluded, would be an extremely rare event. Furthermore, any release would have to be such, in the context of the ventilated cupboard, as to produce a flammable cloud large enough to ignite materials at the base of the cupboard, yet one which did not cause overpressures consistent with the pattern of damage. While such an event cannot be excluded, it is extremely improbable.
a. Aerosol cans are very reliable containers[3666]. They are a very secure, robust method of containing pressurized LPG[3667]. Whilst in storage, large leaks (such as would discharge the contents of an aerosol can) can occur but are rare[3668]. An undamaged aerosol stored in a dry environment which is not going to impair its integrity is a safe container and should not discharge its contents. Many millions of aerosols are purchased in Europe every year and there are only a handful of reported cases of leaking aerosols. Those cases which are reported can be explained by some external factor[3669].
b. In the course of manufacture steps are taken to check the integrity of aerosol cans[3670]. In particular, every aerosol that is manufactured is individually pressure-tested[3671]. An aerosol can should be capable of withstanding a pressure of 15 bar g (15 times atmospheric pressure)[3672]. Likewise, every aerosol can is tested for leaks with machines which can detect a leak rate down to a fraction of a milligram per second[3673].
c. A slow leak in an aerosol can, sufficiently small in magnitude not to be detected by the leak tests to which the can would have been subjected during manufacture, could not generate a flammable atmosphere in cupboard A2[3674].
d. Three potential mechanisms have been identified which could result in a large leak from an aerosol which is stored in a dry environment in a cupboard such as cupboard A2:
i. If an aerosol was stored without its cap on and something was placed on the actuator such that it depressed the actuator, the contents could be discharged through the actuator. It would be necessary for the mechanism to continue to be depressed over time. The release would occur immediately on the object being placed on the mechanism and depressing it[3675]. In such an event most of the contents of the aerosol would be released[3676].
ii. An aerosol which had been impaired by corrosion when stored elsewhere and which was then placed in a relatively dry place in a cupboard could fail spontaneously at any time[3677]. In such an event most of the contents of the aerosol would be released[3678].
iii. An aerosol which had a substantial weight put on it might be caused to burst. An aerosol which had merely been dented would not tend to leak[3679]: it would require to be a substantial weight[3680]. In such an event most of the contents of the aerosol would be released[3681].
e. A release by one of these mechanisms, could create a flammable atmosphere within cupboard A2, though it would tend to be one of very short duration[3682]. In order for a catastrophic release from an aerosol to be the explanation for the initial event, the aerosol can would have to fail at virtually the same time as there was a spark[3683]. The coincidence required for this to be the explanation drove Dr. Vince to seek a mechanism which would generate an intermediate rate of release. He postulated, as a possibility, a catastrophic release of an aerosol within the inner cupboard, leaking out through gaps around the cupboard. If an aerosol on the lower shelf of the small cupboard had failed and released its contents, the volume of that shelf would rapidly fill with flammable gas. The gas would then gradually leak out through any gaps in the construction of the small cupboard[3684]. There are too many variables to undertake any meaningful calculations but a flammable mixture could in these circumstances develop within the main body of the cupboard[3685].
f. In order for ignition to occur, the flammable concentration would require to be in the location of the spark[3686].
g. The following aerosol cans found within cupboard A2 had failed in a manner characteristic of a can exposed to external heating by fire:-
(a) The aerosol can, Label 627[3687] (found amongst debris on the floor).
(b) The two aerosol cans, Label 628[3688] (found amongst debris on the floor).
(c) The aerosol can, Label 629[3689] (found in the middle of shelf 3).
(d) The aerosol can, Label 631[3690] (found amongst debris on the floor).
(e) The aerosol can, Label 487[3691] (found at the back of the lower shelf of the inner cupboard).
h. When Mr. Martin examined the aerosol cans in Labels 486, 488 and 490 (which were all from the lower shelf of the upper cupboard) he found them to be suffering from corrosion[3692]. There was evidence that the corrosion had occurred while the aerosols were in storage in wet conditions resulting from the fire fighting activities following the fire[3693]. The aerosols in Label 488 exhibited general corrosion along the bottom and top crimps and the side weld[3694], whereas when corrosion causes a problem this tends to be in a specific location, typically the bottom crimp[3695]. The aerosols in Label 490 were likewise suffering from general corrosion on the body of the can, the base of the crimp was pitted and rusted and the top crimp and seam were also well rusted[3696]. This rusting was not apparent in Pro 834C, the photograph of the aerosols taken shortly after the incident[3697]. The shrinkwrapped Insette aerosols in label 486 were corroded at the bottom crimps but the top crimps were in good condition and could still operate to discharge the content of the aerosols. Mr. Martin inferred that this was because the top crimps had been covered by the cap and so had not been exposed to so much wetness in storage. On some of the loose aerosols contents had been discharged from the top crimp. This appeared to have happened since the fire, since the discharged lacquer appeared clear and above the smoke damaged aerosol[3698]. The possibility of there having been a corroded can in the cupboard before the fire cannot, however, be excluded[3699].
The alternative explanation: operation of a circuit breaker
108. In the ordinary operation of the distribution board in cupboard A2, the only event which could generate an arc would be the tripping of a circuit breaker, which would create an arc at the contact inside a circuit breaker[3700]. If the board happened to be enveloped in a flammable atmosphere at that time, the arc could well ignite the flammable atmosphere[3701].
109. If a lightbulb blows, it can cause a circuit breaker to trip[3702]. This is somewhat less likely where the light is plugged into a ring main circuit (where the circuit breaker would be at about 32 amps) rather than being part of a lighting circuit (which would be rated about 6 amps)[3703].
110. The tripping of a circuit breaker would almost certainly generate a spark or arc inside the circuit breaker[3704]. The spark would be generated in the area of the contact mechanism within the circuit breaker[3705]. Such an arc can have sufficient energy to ignite a flammable atmosphere should one be present around the board at the time[3706].
111. There are two factors which make it somewhat improbable that one could get a spark in a circuit breaker igniting gases outside the circuit breaker. Firstly, it would be difficult for gases to get into the breaker to be ignited by the spark generated at the contacts. Secondly, it would be difficult for the flame to get back out. This would not however be impossible[3707]. And Dr. Vince identified the possibility that a plasma jet could be emitted from the circuit breaker.
112. There are two difficulties with this explanation:
a. An arc or spark within a circuit board of this sort would pose no danger unless there was a flammable cloud. This explanation accordingly depends critically on the presence of a flammable cloud at just the right time and also in the right location - i.e. at the distribution board itself. It accordingly depends not only on a very unlikely event occurring - namely, a spontaneous release from an aerosol - but on that event producing a cloud of flammable gas of the right proportions at the distribution board just when a circuit breaker tripped.
b. There is no evidence that such a release occurred. Furthermore, there is no evidence, if it is correct that Mrs. Burns was speaking of events after the fire started, of any event occurring which could have resulted in a circuit breaker within the board tripping.
113. Indeed, a flammable cloud in the cupboard due to a release from an aerosol could readily have been ignited by sparks from an arc at the Cable V knockout. All that would be required would be for those sparks to pass through the flammable atmosphere. Accordingly, this scenario (i.e. a scenario which involves a flammable atmosphere being ignited by sparks due to arcing at the Cable V knockout) would not be dependent on the flammable atmosphere being located at the board itself. For example, if there were to have been an accumulation of gas at low level in cupboard A2, such an accumulation could be ignited by a spark travelling through it and this could in turn ignite combustible materials at the lower left hand side of the cupboard[3708].
CHAPTER 44 (formerly 38): REASONABLE PRECAUTIONS
This chapter identifies the determinations which the Crown invites under reference to section 6(1)(c) of the 1976 Act - i.e. reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided. Reference is made to the observations in Chapter 1, para. 6, in particular at pars 6.3, 6.4 and 6.5. In particular:-
(1) The Court is entitled to apply the wisdom of hindsight (see Chapter 1, para. 6.3);
(2) The question of reasonableness is related to the precaution identified and not the behaviour of individuals or organizations (see Chapter 1, para. 6.4); and
(3) Assuming the precaution identified is a reasonable one, it is sufficient to justify a finding under section 6(1)(c) that the precaution identified might have avoided the death or any accident resulting in the death (see Chapter 1, para. 6.5)
The Crown proposes a number of determinations under this heading. These proposed determinations are identified in the following subchapters, as follows:
Chapter 44(1): Insulation at the Cable V knockout;
Chapter 44(2): Inspection and testing of the electrical installation;
Chapter 44(3): Protection of the means of escape;
Chapter 44(4): Prompt and effective action by staff;
Chapter 44(5): Early involvement of the Fire Brigade;
Chapter 44(6): Risk assessment;
Chapter 44(7): Early and sufficient resourcing of the incident by the Fire Brigade
If the Court should take the view that any of these proposed determinations should not be made, it is invited to consider making a determination in respect of the matter identified in that determination under section 6(1)(e) of the 1976 Act.
CHAPTER 44(1) (formerly 38(1)): INSULATION AT THE CABLE V KNOCKOUT
Proposed determination:-
1. It would have been a reasonable precaution:-
(c) for a grommet or other cable protection to have been fitted at the upper righthand knockout of the distribution board when the system was installed and, in any event, when Cable V was installed; and
(d) for the installation to have been undertaken in such a manner that the outer sheath of Cable V was protecting the inner cores as they passed through the knockout.
2. Had there been a grommet in place, or if the outer sheath of Cable V had been protecting the inner cores as they passed through the knockout the metal edge of the knockout would not have come into contact with the live conductor of Cable V. The accident resulting in the deaths and the deaths themselves would not have occurred. In any event, the accident might have been avoided.
1. The basic means of preventing a short circuit within an electrical installation (with the attendant risk of fire) is to ensure that live conductors are protected by insulation suitable for the environment in which the conductors are being used[3709]. Any live conductor passing through the upper righthand knockout of the distribution board in cupboard A2 should, had normal electrical practice been followed, have been protected by three layers of insulation: (i) the PVC insulation round the live conductor itself; (ii) the outer sheath of the cable, which should have continued inside the board so as to protect the conductors from coming into contact with the edge of the knockout; and (iii) a grommet on the edge of the knockout itself.
2. The fitting of a grommet or other cable protection at the knockout would have been a reasonable precaution against the risk of damage to cabling passing through that knockout.
2.1. Where a cable passes through a knockout in a metal distribution board (which is liable, by reason of the way it is made to have sharp edges and burrs), it is reasonably foreseeable that the insulation of the cable may become damaged by abrasion if it is not adequately protected at the location of the knockout. If the insulation becomes abraded in such a manner that the live conductor comes into contact with the metal edge, this creates a danger of arcing which may cause fire[3710].
2.2. At all relevant times it has, for this reason, been normal practice to fit a grommet strip (or a strip of PVC cable) to the metal edge of a cable knockout in a distributijon board to reduce the risk of any cable coming into contact with the edge and the risk of cutting the cable[3711].
2.3. Regulation 6 of the 1989 Regulations (which was in force at all relevant times) provided as follows:-
"Electrical equipment which may reasonably foreseeably be exposed to -
(a) mechanical damage
...
shall be of such construction or as necessary protected as to prevent, so far as is reasonably practicable, danger arising from such exposure."
2.4. The 15th edition of the IEE Regulations (which applied at the time when Rosepark was constructed) provided[3712]:-
"523.19. All conductors and cables shall be of a type suitably constructed to withstand any risk of mechanical damage, to which they may be liable in normal conditions of service, or should be adequately protected against such damage.
...
523.21. Where cables pass through holes in metal work, precautions should be taken to prevent abrasion of the cables on any sharp edges."
2.5. Equipment such as distribution boards should be installed in accordance with the manufacturer's recommendations[3713]. The installation manual for the Memera 2000 distribution board specifically instructed that cable protection should be fitted[3714]. Indeed, the requirement is highlighted by being printed in bold text, in the following terms: "Where cables enter knockouts unprotected (i.e. not in a conduit or terminating in a gland) grommets should be fitted to protect cable insulation from damage"[3715].
2.6. The requirement for protection had been drawn specifically to the attention of Star Electrical Services (Strathclyde) Ltd by David Millar, then a SELECT inspector, in April 1990. In April 1990, Mr. Millar inspected an electrical installation undertaken by Star Electrical Services Ltd at Law Hospital, Carluke. His inspection report dated 10 April 1990 noted "Protection against abrasion required where cables enter metal switchgear" in relation to two wards. The comments read inter alia: "The deviations listed above require to be rectified as soon as possible"[3716].
2.7. Grey PVC had been fitted round the edges of the knockouts in the distribution board on the lower floor to provide protection for the cables passing through the knockouts of that distribution board[3717].
3. Cable V was installed after the rest of the installation, but before the home opened. Whoever undertook this work had to pull the cable through the knockout. It should have been obvious to that person that no grommet or other cable protection was in place at the knockout. Whoever undertook this work should have ensured that the grommet was in place[3718] The electrician who undertook the installation should have done so in such a manner that the outer sheath of Cable V was protecting the inner cores as they passed through the knockout[3719].
4. Had there been a grommet in place, it is unlikely that the metal edge of the knockout would have come into contact with the live conductor of Cable V, and the fire would not have occurred. Equally, if the outer sheath of Cable V had been protecting the inner cores at the point where they passed through the knockout, it is unlikely that the metal edge of the knockout would have penetrated to the live conductor of Cable V, and the fire would not have occurred[3720]. For this reason, had either of these precautions been taken, all of the deaths might - indeed would - have been avoided.
CHAPTER 44(2) (formerly 38(2)): INSPECTION AND TESTING OF THE ELECTRICAL INSTALLATION
Proposed determination:-
1. It would have been a reasonable precaution for the distribution board to have been inspected and tested in accordance with the IEE Regulations at least on the following occasions:-
1.1. On completion of the electrical installation at Rosepark in 1992;
1.2. When the system was modified to add Cable V; and
1.3. Not later than the fifth and tenth anniversaries of the completion of the electrical installation.
2. Had the system been inspected and tested in accordance with the IEE Regulations, the accident and the deaths might have been avoided.
1. The IEE Regulations as they have stood from time to time have required: (a) that on completion of an electrical installation, or in the event of a material alteration to it, the installation should be inspected and tested; and (b) that electrical installations should be subject to period inspection and testing[3721].
Inspection and testing on completion of the installation
2. Chapter 61 of the 15th edition of the IEE Regulations, which applied to the original installation of the electrical system at Rosepark, provided that every installation should on completion, and before being energised, be inspected and tested in accordance with the requirement of Chapter 61, "to verify as far as practicable that the requirements of these Regulations have been met"[3722]. The Regulations required both a visual inspection and testing[3723]. The visual inspection was "to verify that the installed electrical equipment is in accordance with the applicable British Standards, correctly selected and erected in accordance with these Regulations and not visibly damaged so as to impair safety"[3724].
3. The intallation was not inspected and tested on completion: see above.
4. Had an inspection been undertaken in accordance with the IEE Regulations on completion of the installation, the absence of a grommet or other cable protection at the cable knockout would have been identified[3725].
Inspection and testing on completion of an alteration to the installation
5. Regulation 621-1 of the 15th edition of the IEE Regulations and Regulation 721-010-2 of the 16th edition provided[3726]:
"For an alteration to an existing installation it shall be verified that the alteration complies with these regulations and does not impair the safety of the existing installation."
6. The addition of Cable V to the installation would fall to be regarded as an alteration and, if it had been undertaken after the original installation had been inspected and certified (assuming that had happened), the electrician installing it should have inspected, tested and certified it in accordance with the Regulations[3727].
7. It may reasonably be inferred that no inspection and testing complying with the IEE Regulations was undertaken at this stage, since such a process would (see below) have identified the absence of the grommet.
8. The question of whether the addition of the second isolator switch in the laundry would fall to be regarded as an alteration was debateable. A cautious approach would have been to treat it as an alteration (which would have required inspection and testing of the relevant part of the system), but this would be open to reasonable debate[3728].
Periodic inspection and testing
9. It would, in any event, have been a reasonable precaution for the electrical installation to have been subject to periodic inspection and testing.
9.1. Regulation 4(2) of the Electricity at Work Regulations 1989 (which was in force at all relevant times) provided:-
"As may be necessary to prevent danger, all systems shall be maintained so as to prevent so far as is reasonably practicable such danger."
The fixed electrical installation at Rosepark was an electrical system which 9 fell within the scope of this provision. Failure to carry out maintenance of the system created a risk of injury due to damage and deterioration of the system[3729].
9.2. The Memorandum of Guidance to the Regulations published by the HSE advises that regular inspection of equipment is an essential part of any preventive maintenance programme[3730]. This is the normal method of satisfying the requirement for maintaining an electrical installation[3731].
9.3. The IEE Regulations as they existed throughout the life of Rosepark Care Home before the fire, required that electrical installations be inspected and tested periodically[3732].
10. The electrical installation of a care home should be inspected and tested by a qualified electrician or someone with the appropriate competence at least every five years[3733].
10.1. The Memorandum of Guidance to the Electricity at Work Regulations published by the HSE advised that the frequency at which preventative maintenance required to be carried out is a matter for the judgment of the duty holder[3734].
10.2. At the time when the Home was constructed five years was the default period for periodic inspection and testing, specified in a Note in the IEE Regulations. This would have applied to a care home[3735].
10.3. In 1992, in conjunction with the 16th edition of the IEE Regulations, the IEE published a Guidance Note on Inspection and Testing. Table 4A of this Guidance Note[3736] specified five years as the appropriate maximum period between inspections for hospitals. This could reasonably be applied to care homes[3737].
10.4. The same maximum period was recommended for hospitals in subsequent editions of the IEE Guidance Note, published in June 1995 and 1997[3738].
10.5. Given the complex nature of the inspections and tests, and the attendant risk of injury, these inspections and tests should be carried out by a qualified electrician or by someone else with appropriate competence[3739].
11. Although there would have been no objection to more frequent inspection - and, indeed, the IEE certificate issued by Mr. Ross and a colleague on completion of the electrical installation at Croftbank House in 1996 recommended inspection and testing after an interval of not more than two years[3740] - the electrical installation at Rosepark should accordingly have been inspected and tested at least every five years[3741]. On that basis, it would have been reasonable for the Home to have been inspected in accordance with the IEE Regulations not later than February 1997 and again not later than February 2002.
No inspection and testing in accordance with IEE Regulations was being undertaken
12. No inspection and testing in accordance with IEE Regulations was undertaken at Rosepark before the fire in January 2004: see Chapter 12 above.
Had the installation been inspected and tested the accident and the deaths might have been avoided
13. Had periodic inspection and testing been undertaken to the standard to be expected under the IEE Regulations, the absence of a grommet or other form of cable protection at the cable knockout would have been identified[3742].
13.1. Periodic inspection and testing would involve a person examining the fixed parts of the electrical examination, looking for damage, deterioration, wear and tear and non-compliance with the British Standard. In addition, a sample of the installation should be tested[3743].
13.2. In the context of a periodic inspection undertaken in accordance with the IEE Regulations, the electrician undertaking the inspection would require to remove the front cover of a distribution board such as the distribution board in cupboard A2, so that he could visually inspect the inside of the unit. He would inter alia look for loose connections, signs of overheating and damage, wear and tear, ingress of moisture and dust. He would check that the cables are not damaged in any way and that sheath cables enter into the back of the consumer unit so that the insulated conductor is not exposed to damage against the edge of the consumer unit[3744].
13.3. An inspection of the distribution board, in accordance with the IEE Regulations, would have disclosed the absence of a grommet at the right upper cable knockout[3745]. The presence of grommets at cable knockouts is something which the inspector would normally look out for[3746] and should identify[3747]. Although in the case of a congested distribution board it might be difficult to see knockouts, the absence of a grommet strip from the upper right cable knockout in the distribution board in cupboard A2 would have been obvious and should have been identified in the course of an inspection of the board[3748].
13.4. An inspection of the distribution board in accordance with the IEE Regulations, would also have spotted that the sheath was not providing protection at the knockout[3749]. Although this might not be spotted if the red insulation was hidden behind other cables, in the context of the incident distribution board and the way it was wired up, this should have been apparent[3750].
13.5. If an electrician undertaking a periodic inspection identified the absence of the grommet, he would, at least note this on the periodic inspection and test report as something which would require to be attended to. Mr. Madden would have advised characterizing this deficiency as something requiring urgent remedial action rather than as simply requiring remedial action[3751].
13.6. It follows that if the installation had been inspected and tested in accordance with the IEE Regulations, the accident and the deaths might have been avoided. Indeed one can go further, and say that they probably would have been avoided.
CHAPTER 44(3)(A) (formerly 38(3)(A)) PROTECTION OF THE MEANS OF ESCAPE - CUPBOARD DOORS
The Crown proposes the following determinations in relation to the cupboard doors:
Determination that the cupboard doors should have been kept locked shut or at least securely closed
1. It would have been a reasonable precaution for the doors to cupboard A2 to have been kept locked shut or at least securely closed.
2. Had the doors of cupboard A2 been securely closed, the deaths might have been avoided.
Determination that fire-resisting doors should have been fitted to cupboard A2
1. It would have been a reasonable precaution to fit fire-resisting doors to cupboard A2.
2. Had this precaution been taken, the deaths might have been avoided.
Determination that the cupboard doors should have been kept locked shut or at least securely closed
Introduction
1. It would, for the following reasons, have been a reasonable precaution for the doors of cupboard A2 to have been kept locked shut[3752] or at least securely closed.
1.1. The cupboard contained: (a) a potential source of ignition (namely, the electrical distribution board and associated equipment); and (b) a substantial quantity of combustible materials[3753].
1.2. The cupboard was located directly on a means of escape. A fire within the cupboard would threaten the means of escape. If a fire broke out of the cupboard into the corridor, this would seriously compromise the means of escape.
1.3. The cupboard was located in a sub-compartment of the Home which housed up to 14 residents, who could, at any given time, be expected to include individuals with high levels of dependency and whose evacuation would present significant challenges[3754].
1.4. As the BRE work outlined below showed, securely closing the cupboard doors would (subject to the unpredictable effects of any aerosol canisters) significantly slow the fire breaking out into the corridor[3755].
1.5. In these circumstances, it would have been a reasonable precaution for those doors to have been kept locked shut[3756] or in any event securely closed.
2. The importance of keeping flammable materials in secured cupboards was recognized in the Safety Video which advised: "Make sure linen and other potentially flammable materials are stored away from heat sources in locked cupboards"[3757]. It is of note that the main electrical cupboard at Rosepark was always kept locked[3758]. With hindsight, Mr. Thomas Balmer accepted that cupboard A2 should have been kept locked[3759].
The BRE work
BRE Test B
3. BRE undertook a test (Test B) in which a fire was set in a cupboard which replicated cupboard A2 and was stocked so far as possible with similar materials (albeit with a quantity of aerosols on shelf 3), with these differences: that the cupboard was fitted with fire doors which were closed and latched; and no attempt was made to replicate the ventilation duct[3760].
4. After more than 20 minutes, the doors remained intact and closed and nothing had been seen outside the cupboard. The doors were opened and effectively the fire had gone out. In this test, none of the aerosols exploded and the fire reached a peak temperature of 100 degrees Centigrade[3761].
5. Had the doors been ordinary cupboard doors rather than firedoors, as long as these were well fitting and/or fitted with seals, the fire would similarly have gone out[3762]. This test did not, however, replicate the effects of the ventilation duct which would have provided additional oxygen[3763].
BRE Test D
6. Test B was repeated with the exception: (a) that a hole was made in the cupboard to provide a ventilation opening approximately at the location of the duct in cupboard A2; and (b) that no aerosols were placed in the cupboard. The doors (which were fire doors) were latched closed[3764].
7. The fire developed within the cupboard over an extended period without apparently becoming particularly severe. After more than 40 minutes, the timber providing the latching for the doors failed and the doors fell open, providing additional oxygen for the fire. From early on in the development of the fire, smoke escaped out through the vent[3765].
8. Had this test been undertaken with ordinary cupboard doors rather than fire doors it could be expected that:
8.1. More oxygen would have been available, through the gaps around the doors; and
8.2. The doors would have burned through much sooner[3766].
9. The presence of any aerosols could also have had an effect, particularly if they were to explode, by disrupting or opening the doors[3767].
BRE Test 4
10. Test 4 in the series investigating the ventilation ductwork investigated the efficacy of ordinary cupboard doors (as opposed to fire doors). Aerosol canisters were placed in the cupboard. The cupboard was connected to the ventilation system and the fan was operated for the first six minutes from ignition before being switched off. The cupboard doors (which, as at Rosepark, were ordinary cupboard doors and not fire doors) were latched closed. Despite two explosions of aerosol cans, flames did not escape through the cupboard doors until 12 minutes 20 seconds after ignition[3768]. It may be, however, that the doors at Rosepark were not as tightly fitting as those used in this test, in which case they would have been breached sooner[3769].
Aerosols
11. If the cupboard contained aerosols (as the cupboard at Rosepark did[3770]), and these became involved in the fire (as some of those in the cupboard at Rosepark did[3771]), this would have various potential consequences.
11.1. The pressure increase caused by an exploding aerosol could cause the doors to fail, although they could have remained secure[3772].
11.2. If the doors did not fail, an aerosol explosion could accelerate the rate of oxygen depletion and lead to the fire burning itself out more quickly[3773].
11.3. The pressure from the aerosols could force the fire into the ventilation ductwork. The ductwork would be liable to melt, allowing fire to enter the ceiling void. However there were relatively few combustible materials within the void, and in the BRE tests at Garston the ductwork remained intact[3774].
Conclusions from the BRE work
12. Because cupboard A2 was connected to the ventilation system, a fire would have been able to develop within the cupboard even if the doors had been closed[3775]. This is demonstrated by comparing BRE Test B[3776] with BRE Tests D and 4[3777].
13. The closing of the cupboard doors would however (subject to the possible - and unpredictable effects - of aerosol canisters) have materially delayed the fire breaking out into the corridor[3778]. This would provide additional time:
13.1. for staff to identify the fire;
13.2. for staff to close other bedroom doors; and
13.3. (assuming that a prompt 999 call had been made) for the Fire Service to arrive and deal with the fire.
14. On the basis of BRE Test 4 (allowing for the period before the fire reached the stage of two number 7 cribs), had the cupboard had ordinary cupboard doors (subject to the effects of any aerosol canisters), it would have taken some 14 or 15 minutes from the fire alarm before the fire broke out of the cupboard. An additional 10 minutes or so would have been bought for the various actions mentioned above.
15. On the basis of BRE Test D, had the cupboard doors been fire-resisting doors, a significantly extended period - over half an hour - would (subject to the effects of any aerosol canisters) have elapsed before the fire broke out of the cupboard.
16. In addition to these benefits, had the doors to the cupboard been securely closed, the quantity of smoke and toxic gases which would have been generated by the fire would have much less than those generated during the actual incident[3779].
17. An exploding aerosol can could have ruptured the secured doors of the cupboard (whether those were fire-resisting doors or not) within the extended period. However, the response of aerosols to a fire is unpredictable. As seen in BRE Test 4, even if aerosol cans were to rupture and explode, this would not necessarily result in the fire breaking out of the cupboard if the doors were properly secured[3780].
18. It follows that had the cupboard doors been securely closed and locked this might have avoided some or all of the deaths.
Determination that fire-resisting doors should have been fitted to cupboard A2
19. Given the following circumstances, it would have been a reasonable precaution for the cupboard to have been fitted with fire-resisting doors.
19.1. The cupboard contained: (a) a potential source of ignition (namely, the electrical distribution board and associated equipment); and (b) a substantial quantity of combustible materials[3781].
19.2. The cupboard was located directly on a means of escape. A fire which broke out of the cupboard would seriously compromise the means of escape[3782].
19.3. The cupboard was located in a sub-compartment of the Home which housed up to 14 residents, who could, at any given time, be expected to include individuals with high levels of dependency and whose evacuation would present significant challenges[3783].
19.4. The cupboard was connected to the ventilation system. As the BRE work outlined above demonstrated, this meant that, even with well-fitting doors, there would be a continuing source of oxygen such that a fire would not burn itself out[3784].
19.5. As the BRE work outlined above showed: (a) securely closing the cupboard doors would (subject to the unpredictable effects of any aerosol canisters) significantly slow the fire breaking out into the corridor; and (b) if the doors were fire-resisting, the additional time thereby bought for responding to the emergency would be very significantly prolonged[3785].
19.6. Fire Safety: An Employer's Guide[3786] provided that stocks of office stationery and supplies and flammable cleaner's materials should be kept in separate cupboards and stores and if they open onto a corridor or stairway escape route, they should be "fire-resisting with a lockable or self-closing fire door".
19.7. In these circumstances, in order to protect the means of escape, it would have been reasonable for the cupboard to have been fitted with fire resisting doors[3787].
20. BRE Test D showed the benefit (subject to the unpredictable effects of aerosols) of fitting fire-resisting cupboard doors. It took the fire more than 30 minutes longer to break out of the cupboard than was the case in the actual incident at Rosepark. This would have provided very significant additional time for staff to identify the fire, to close other bedroom doors and, assuming that a 999 call was made, for the Fire Service to arrive and deal with the fire.
21. It follows that, had the doors to the cupboard been fire-resisting, as well as being securely closed, this might have avoided some or all the deaths.
CHAPTER 44(3)(B) (formerly 38(3)(B)) PROTECTION OF THE MEANS OF ESCAPE - BEDROOM DOORS
The Crown proposes the following determination in relation to bedroom doors:-
1. It would have been a reasonable precaution for all bedroom doors to have been closed in the event that a fire alarm sounded.
2. Had this precaution been taken, the deaths, or some of them, might have been avoided.
The first of these propositions is addressed in paragraphs 1-15 below, and the second in paragraphs 16-25.
It would have been a reasonable precaution for all bedroom doors to have been closed in the event that a fire alarm sounded.
General
1. In the event of a fire breaking out, having the bedroom doors closed is an important aspect of maintaining the integrity of means of escape[3788].
1.1. In the event that a fire breaks out within a bedroom (which is much more common in care homes than fires on the means of escape itself), it is essential that this is prevented from spreading out into the corridor where it will affect the means of escape and may spread into other rooms[3789].
1.2. In the event that a fire breaks out on the corridor, having the bedroom doors closed:
1.2.1. Provides significant protection (even if the doors are not fire-rated) against the effects of temperature and toxic gases.
1.2.2. Limits the oxygen available to the fire.
These propositions were vouched by the BRE work, detailed below.
2. Having a closed bedroom door, as compared with an open bedroom, involves a "step change" in fire safety[3790].
3. The importance of keeping bedroom doors closed for reasons of fire safety has been known since before Rosepark was constructed.
3.1. The design of Rosepark included Perko door closers on the bedroom doors. Mr. Dickie had told Mr. Balmer that "it would be a requirement to have the closing device fitted to the door for safety" and Mr. Balmer understood that this was because it "created inherency of fire protection within that room"[3791].
3.2. Mr. McNeilly insisted that the Perko door closers be replaced by overhead door closers. Mr. McNeilly told Mr. Balmer that this was an aspect of protecting the means of escape[3792].
3.3. An early resident contract for Rosepark stated, under the heading "Smoking and Fire Regulations": "Residents are required to keep their bedroom doors closed and not jam them open"[3793].
3.4. The Fire Safety Video used at Rosepark emphasized the importance of keeping bedroom doors closed[3794].
4. A situation in which all the bedroom doors were closed in the event of a fire alarm at night could have been achieved:-
4.1. By insisting that all bedroom doors were kept closed throughout the night; or
4.2. By having in place arrangements whereby all bedroom doors would be closed in the event that the fire alarm sounded.
5. In the context of a nursing home, there are valid reasons for not insisting that all bedroom doors be kept closed at night:-
5.1. In the case of some residents, there are medical or nursing reasons for leaving bedroom doors open[3795]. Mrs. McWee, for example, suffered from Charles Bonnet syndrome, and for this medical reason required to have her bedroom door open.
5.2. A Care Home is the resident's home and, other things being equal, a resident may reasonably wish to make a choice to have his or her door open or ajar at night[3796].
6. It is not, however, an adequate or sufficient approach, to say that it is the resident's "right" to have his or her door open[3797].
6.1. In the first instance, there is a question of informed consent - that a Home which took that approach would require to discuss with the resident or the resident's relatives, the fire safety implications of leaving the bedroom door open[3798]. Ms Meaney's view was that the implications should have been a matter of discussion with the resident (or the resident's relatives)[3799]. But there is no evidence that such discussions were in fact had, and, although there were in the Care Plans a questionnaire setting out each resident's preferences in relation to various matters and an individual risk assessment, neither of these addressed the question of leaving bedroom doors open[3800].
6.2. More fundamentally, to accede to a request by a resident to that effect would put other residents at risk. The issue accordingly comes to be squarely one which management, which has a responsibility for the safety of all the residents, has to address as a matter of policy and procedure[3801].
7. The Green Guide had referred to the need for staff to be given instruction and training in the "need to close all doors at the time of a fire and on hearing the fire alarm"[3802].
8. The guidance available at the time of the fire did not consistently recommend that bedroom doors should be fitted with closers[3803].
8.1. HTM 84 stated[3804]:
"In medium and large premises all bedrooms (staff and resident) should be fully enclosed in construction which offers 30 minutes fire resistance.
...
Notes
The fire resisting enclosure will be formed by the walls, doors and the ceiling (unless the walls are taken up to the underside of the roof).
Doors should be FD30S, but they do not need to be fitted with an automatic self-closing device."
The philosophy of the document was expressed thus[3805]:
"Residential care premises are home for many people. Therefore, in providing an acceptable level of fire safety, there should be a recognition of the need to provide a homely non-institutionalised environment. This document attempts to achieve this by considering the full range of issues which affect fire safety in residential care premises ... In order to maintain a homely and non-institutional atmosphere, precautions should be introduced carefully, taking account of any possible adverse effects on the quality of residents' lives and the care that they receive. For example, a self-closing door, which is a useful protection in the event of a fire may be an inconvenience to the elderly or even cause an accident if care is not taken with its location."
The same approach was taken in Fire Safety in Residential Care Premises: a Good Practice Guide to Fire Safety in Residential Care Premises in England and Wales, published by the Institute of Building Control, which was based on HTM 84[3806].
8.2. SHTM 84 stated[3807]:
"Requirement
All bedrooms must comply with the requirements for sub-compartmentation of part D of the Technical Standards"
Notes
The fire resisting enclosure will be formed by the walls, doors and the ceiling, unless the walls are taken up to the underside of the roof.
Doors to the corridor should provide the same level of fire safety performance as the wall, as described in Technical Standard D1.3 and be fitted with an automatic self-closing device with a "swing free" arm and activated by the operation of the detection and alarm system."
8.3. Christian, Fire Safety in Care Homes for Older People and Children, contained the following advice[3808]:
"In residents' bedrooms the doors should not be provided with self-closing devices as they can impede resident evacuation from the bedroom in a fire emergency. Also difficulty has been experienced in a number of homes where the residents have objected to the doors to their rooms being fitted with self-closing devices. With many elderly people their discomfort at being shut in their own rooms divorced from their surroundings has led to the practice of such doors being wedged open. The constant and daily contact between the residents is an essential part of life for such people and they should not be deprived of this pleasure. Enforcement authorities should therefore be mindful of residents' needs and where possible should try and find other means, i.e. additional doors in corridors, to provide smaller protected areas to provide reasonable fire safety. Recent determinations by the Secretary of State took the view that with the exception where such bedroom doors discharged into a common area with other public rooms, i.e. day rooms, dining rooms, individual bedroom doors did not have to be fitted with self-closing devices."
9. The guidance in HTM 84 should not be understood to imply that doors should not be closed in the event of fire breaking out[3809]. The thinking was that it would be more reliable to rely on staff action to close doors either generally at night time or on an alarm going off: self-closers, if fitted, would tend to be neutralized because they conflicted with an element of the function of the building[3810]. The provisions of HTM 84 in relation to door closers should be read along with the provisions recommending annual training and drills twice a year, which should include training in the importance of closing doors[3811].
10. In the event that bedroom doors were to be left open at night, it was essential from the point of view of fire safety to minimize the risk - and in particular to ensure that steps be taken to ensure that such doors were closed in the event that the fire alarm sounded. This could be done in one or other of the following ways:-
10.1. Members of staff could close all doors in the event that the fire alarm sounded[3812]; or
10.2. The doors could be fitted with mechanisms which would close them automatically in the event that the fire alarm sounded.
11. At all relevant times there were available in the market a number of technological solutions to the apparent conflict between fire safety and other demands, devices which could have been fitted to the bedroom doors in order to make sure that they would be closed should the fire alarm sound[3813].
11.1. A magnetic hold-open device linked to the fire alarm system can used to hold open bedroom doors fitted with overarm door-closers, releasing them in the event of the alarm sounding. This was the type of mechanism used on the corridor firedoors at Rosepark at the time of the fire[3814].
11.2. A swing-free device allows the door to be used freely, and in particular left open at any angle, but operates to close the door in the event that the fire alarm operates. These devices first became available in the early 1980s. The installation of such devices would be relatively straightforward. It would require an electrical circuit to be run through the building and connected to the relay on the fire alarm control panel in the same way as the existing corridor firedoors were connected to the panel. It would not require any change to the fire alarm system itself. The devices themselves were relatively expensive, perhaps £250-£300 per device plus the installation costs[3815].
11.3. An acoustically linked door hold open device (with the proprietary name "Dorgard") was available. Dorgard is a battery-operated device which is fitted to the bottom of the door, and holds it open using a foot-operated plunger. In the event of any high noise level persisting for a short period of time (such as the fire alarm), the plunger retracts allowing the door (which is fitted with a self-closing device) to close. These devices are easily installed (being fitted to the door with screws in about five minutes), and can hold the door open at any angle. They require no other modifications. The cost of each unit was in 2003 about £80. However they have some disadvantages: they may respond to other noises; there might at least in the early stages of use of the product, be situations, depending on the floor surface, in which the device would not hold the door open or would stick; they depended on the sound level of the fire alarm being adequate. They were first introduced to the market in 1996 and initially were controversial. In 1998 the Chief and Assistant Chief Fire Officers Association issued guidance that the device should be regarded as acceptable subject to checking that the audibility level of the fire alarm at each location of use was sufficient and this was re-affirmed in 2003[3816].
12. The use of any such device would require to be properly considered along with other fire precautions through a process of risk assessment. So, for example, an acoustic device depends on the fire alarm sounding sufficiently loudly at all locations immediately upon the system being activated[3817]. It would not be safe to rely on such devices to the exclusion of staff taking action to make sure that all doors are in fact closed in the event of the alarm sounding, since something could be placed in front of the door which would stop it closing[3818].
13. A Care Home might, in principle, adopt a strategy which relied solely on the action of staff to close bedroom doors in the event of a fire. There would be some advantages to such a strategy, namely it can be done in conjunction with an investigation of the relevant area; and it avoids the risk of a technological device failing[3819]. A Care Home adopting such a strategy would, however, require to address itself seriously to the training and drilling of staff in that regard[3820] and, indeed, potentially, to whether the number of staff on duty at any time would be sufficient to ensure that this action would be taken.
14. Experience tends to show that a key underlying feature in fire disasters is a failure of fire safety management and the response of people in the event of fire. Accordingly, it is desirable, so far as possible, to adopt measures which do not depend on human action[3821]. In the present context, the conclusion to be drawn is that it would not, generally, be desirable to rely solely on staff acting, or being able to act, correctly in an emergency and, wherever possible, door closing devices should be fitted[3822]. Staff in an emergency will have a number of activities to undertake and will have to take difficult decisions about the deployment of their own resources. The circumstances of a particular fire might make it difficult for staff to close doors. And a system which relies on staff action alone is susceptible to the risk of human error[3823].
15. It would, accordingly, have been a reasonable precaution for the management at Rosepark to have fitted devices of the sort mentioned above to ensure that bedroom doors were closed in the event that the fire alarm was activated. This was accepted by Mr. Balmer[3824], and was indeed done, both at Rosepark and at Croftbank following the fire[3825].
Had all the bedroom doors been closed, the deaths, or some of them, might have been avoided.
Corridor 4
16. Had all the bedroom doors in corridor 4 been closed:-
16.1. Each door would have provided a barrier to the effects of axphyxiant gases and heat within the relative bedroom[3826].
16.2. The fire would have become extinguished more rapidly by reason of exhaustion of the oxygen in the corridor[3827].
These propositions are justified on the basis of evidence from the BRE work set out in paragraphs 17-20 below. The significant effects of a bedroom door being closed is, in any event, apparent from the photographic evidence, which discloses significant heat and smoke damage in bedrooms in corridor 4 where the bedroom doors were open, while the photographs of Mrs. Burns' room shows minimal apparent damage[3828]. It is also noteworthy that, whereas residents of rooms where the doors were open died in the fire, Mrs. Burns and Mrs. MacLeod, whose doors were closed, were at least rescued alive. Given that Mrs. Burns and Mrs. MacLeod both later died, one cannot necessarily conclude that residents of corridor 4 would have survived if their bedroom doors had been closed. The question of whether or not the closing of those bedroom doors would in fact have prevented any of the deaths in corridor 4 would no doubt have depended among other things on: (a) the effect of the more rapid extinction of the fire (due to the closing of all the bedroom doors) on the overall exposure of the residents to toxic fire gases; and (b) the speed of rescue. But it would be reasonable to conclude that had all the bedroom doors of residents in corridor 4 been closed those residents might have survived.
Evidence from BRE Test 1
17. In BRE Test 1:-
17.1. There was a marked difference in the temperatures recorded in room 11 (which had a closed door) and room 15 (which had an open door). This was attributable to the presence of the door[3829]. The temperatures in room 11 never, during the test, exceeded 30 degrees Celsius even at a high level within the room.
17.2. There was a very marked difference in the gas measurements taken in room 11 and room 15. This may be seen strikingly by contrasting pp. 161 and 162 of Pro 1458.
As Professor Purser put it in relation to room 11 with a closed door[3830], "The temperature also has barely risen above ambient temperature so there's no heat stress to an occupant of that room [i.e. room 11 with a closed door]. The door is providing really good protection from the gases in the corridor."
Evidence from BRE Test 3
18. The BRE undertook a full reconstruction (Test 3) which replicated Test 1 with the exception that each of the bedrooms was fitted with half hour fire resisting doors which were closed[3831].
18.1. In corridor 4, peak temperatures of 800 degrees Centigrade were shown near room 8, 424 degrees near room 15, and 610 degrees near room 17[3832]. There was however substantially less damage to the elements within the corridor than was observed in Test 1: this was because the reduced amount of oxygen limited the amount of heat produced by the fire and the spread of flames into the corridor[3833].
18.2. Within the bedrooms off corridor 4 (which all had closed doors) (with the exception of one room where anomalous readings were obtained) ceiling temperatures reached only 21 degrees Centigrade and nose height temperatures only 20 degrees Centigrade[3834]. There was virtually no penetration of asphyxiant gases into these rooms[3835].
19. Had ordinary bedroom doors been used rather than fire-rated doors:
19.1. As long as the door to any bedroom was not breached by the fire, it would have provided significant protection (though not as great protection as a smoke sealed door) to the room behind from the effects of heat and asphyxiant gases. The effects could be expected to be similar to those seen in room 11 in Test 1[3836].
19.2. The fire in the corridor would also have been very much more limited than the fire in Test 1 (or the fire at Rosepark) - although not as limited as was seen in Test 3 because some additional oxygen would be available to the fire in the corridor through gaps between the doors and the doorframes, and it would have been possible that doors in the vicinity of the fire would have been breached[3837].
BRE fire resistance test on ordinary bedroom doors
20. The BRE undertook a standard fire resistance test on an ordinary bedroom door such as the doors at Rosepark and on a fire-rated door, situated side by side. The two doors were exposed to heat created by a standard fire test furnace. This did not seek to replicate the effects of a real fire, but provided some assistance in understanding the different performance of a fire-rated door and an ordinary bedroom door. It disclosed that an ordinary bedroom door would not become breached by the effects of fire for a period of time, albeit significantly less time than in the case of a fire-resisting door[3838]. This evidence supports the finding reported at paragraph 19.1 above.
Corridor 3
21. It may reasonably be concluded that had the bedroom doors of Isabella MacLachlan and Margaret Gow been closed they would have survived with minimal, if any, injury[3839]. The level of exposure to toxic gases in a closed room in corridor 3 was very low - perhaps around 8-14%, around the level that a heavy smoker might attain without obvious ill-effects. On being rescued, the residents of such rooms would have been exposed to a smoky corridor for a short period of time, perhaps adding an additional 2-3% carboxyhaemoglobin, giving a predicted total level of around 10-17%[3840]. The position of Isabella MacLachlan and Margaret Gow, had their bedroom doors been closed, would have been equivalent to that of Mary Dick, the one resident of corridor 3 whose door was certainly closed, and who did not, so far as can be ascertained, require any medical treatment following the fire[3841].
Conclusions
Corridor 4
22. If the bedroom doors in corridor 4 had been closed (and had not been breached), the conditions observed in room 11 in BRE Test 1 would have been replicated in all the bedrooms and the conditions might have been better than were observed in room 11 in BRE Test 1[3842].
23. The bedroom doors, if they had all been closed, would have withstood the fire in the corridor for a period sufficient for the fire to die back from lack of air, such that fire penetration into the bedrooms would not, in the absence of some exceptional circumstances causing flame impingement directly on the door, have occurred[3843].
24. Given that the two residents in Corridor 4 who had closed doors did not, ultimately, survive, it cannot be said with certainty that any of the residents in this corridor would have survived even if their doors had been closed. However, closing the doors on its own would have made a significant difference to their prospects and might have avoided the deaths. If the residents of these rooms had also been rescued more quickly, this would have further enhanced their prospects of survival.
Corridor 3
25. If the bedroom doors of Isabella MacLachlan and Margaret Gow had been closed, it may reasonably be concluded that they would have survived[3844].
CHAPTER 44(3)(C) (formerly 38(3)(C)) PROTECTION OF THE MEANS OF ESCAPE - FITTING SMOKE SEALS TO BEDROOM DOORS
The Crown proposes the following determination:
1. It would have been a reasonable precaution to have fitted smoke seals to bedroom doors.
2. Had this precaution been taken the deaths of Robina Burns and Isabella MacLeod might have been avoided.
The former proposition is discussed at paragraphs 1-5 below; the latter at paragraphs 6-9.
It would have been a reasonable precaution to have fitted smoke seals to bedroom doors
1. A smoke seal is a rubber-based flexible seal that is fitted in the leaf or the frame of a door to prevent any air flow across the gap between the leaf and the frame[3845].
2. It would be a straightforward job to fit a smoke seal to an existing door frame. The seal comes with an adhesive strip. Once the backing paper had been peeled off the strip could simply be fitted into place. This would not require any specialist expertise[3846].
3. Smoke seals were available before the fire in January 2004. HTM 84 specified that bedroom doors should be "FD30S", which implied that they should have 30 minutes fire resistance and also be fitted with smoke seals[3847]. The designs for the proposed new nursing unit at Rosepark for which warrant was sought in 1999, specified that the bedroom doors should be "self-closing smoke stop firedoors".
4. Smoke seals were very inexpensive items[3848].
5. Mr. Todd explained that, in the context of the discussion which a risk assessor would have about the time for evacuation of residents and the protection of escape routes, the risk assessor would consider upgrading the bedroom doors to fire-resisting doors and the fitting of smoke seals[3849].
Had this precaution been taken, the deaths of Robina Burns and Isabella MacLeod might have been avoided.
6. Robina Burns' bedroom had very substantial protection from the effects of heat and asphyxiant gases, simply by reason of the fact that the bedroom door was closed. However, some asphyxiant gases were able to penetrate the room through the gaps between the door and the doorframe. Had there been a smoke seal, there would have been effectively no such penetration.
7. The benefits of a smoke seal in this regard may be illustrated by comparing the measurements taken in room 11 in the BRE Tests 1 and 3. In Test 1 there was a closed ordinary bedroom door, and there was some leakage of asphyxiant gases into the room through the gaps between the door and the doorframe. In Test 3 the room was fitted with a firedoor with a smoke seal, and there was effectively no penetration of asphyxiant gases into the room[3850].
8. Accordingly, had there been a smoke seal on Mrs. Burns' bedroom door, she would have sustained effectively no exposure prior to being evacuated by the fire services. In that event she might well have survived.
9. So far as Mrs. MacLeod is concerned, the same analysis applies, subject to the possibility that her door was penetrated at some point in the fire.
CHAPTER 44(3)(D) (formerly 38(3)(D)) PROTECTION OF THE MEANS OF ESCAPE - STORAGE OF COMBUSTIBLE MATERIALS (INCLUDING AEROSOLS)
The Crown proposes the following determination:
1. It would have been a reasonable precaution to minimize the storage of combustible materials in cupboard A2. In particular, it would have been a reasonable precaution not to store a quantity of aerosols within cupboard A2.
2. Had this precaution been taken, some or all of the deaths might have been avoided.
It would have been a reasonable precaution to minimize the storage of combustible materials in cupboard A2. In particular, it would have been a reasonable precaution not to store a quantity of aerosols within cupboard A2.
1. A fire involving substantial non-hazardous combustible (such as cardboard, disposable aprons, toys etc) can become very severe[3851].
2. It follows that the management of a Care Home should seek to minimize the storage of quantities of such combustibles, particularly where they might affect escape routes[3852]. This applies not only to storage on the escape route itself, but also to storage in a cupboard off an escape route[3853].
3. Aerosols, provided they are undamaged, are a generally safe means of storing volatile materials. However:-
3.1. If an aerosol is stored in damp conditions and corrodes, the contents may escape, creating a flammable environment and causing fire or explosion[3854].
3.2. The potential destructive power of an explosion resulting from the release of the contents of an aerosol is great. The explosion of a single aerosol is capable of causing serious structural damage[3855].
4. The expert evidence would not support a ban on the use of aerosols in Care Homes. For example, from a fire safety point of view, Mr. Shipp would not have concerns about individual residents keeping aerosols in their rooms as such, provided that this was appropriately managed: (a) to limit the number of aerosols to one or two; and (b) to ensure that the aerosols were being looked after in an appropriate manner, and in particular kept away from a heat source or other source of ignition[3856].
5. Mr. Shipp would not have regarded an electrical distribution board as a source of ignition in this regard, at least provided it had been properly installed and maintained[3857] and this view was concurred in by other experts[3858]. The proviso is plainly critical, as is the expectation that aerosols should have been looked after in a proper manner. As evidence to this inquiry shows, an electrical distribution board, if it has not been properly maintained, can be a source of ignition. Furthermore a distribution board, in its ordinary operation, is a potential source of ignition in the event that a flammable atmosphere is present and, as the evidence to this inquiry has shown, it is possible for an aerosol which has not been properly looked after to release its contents creating a flammable atmosphere.
6. It is necessary to keep in mind that the particular issue in relation to cupboard A2 was its location on an escape route and the risk which a fire in that cupboard, accordingly, presented to the means of escape. There is ample evidence in the BRE work to show that, in the event of a fire in a cupboard such as cupboard A2, even if the doors to the cupboard had been fire-resisting and locked shut, the presence of aerosols would have added significantly - if unpredictably - to the danger of the fire breaking out of the cupboard. Aerosols would, if they became involved in the fire, create a source of serious danger both for staff or professional fire fighters engaged in fire fighting, and for personnel engaged in evacuation activities in the corridor.
7. HTM 84 and SHTM 84 both mentioned, in the context of the control of combustible materials more generally, the appropriate storage and disposal of aerosol sprays taking into account the quantities involved[3859].
8. In all these circumstances it would have been a reasonable precaution to minimize the combustible materials in cupboard A2 and, in particular, not to keep aerosols in this cupboard[3860].
9. Mr. Todd's principal concern in relation to the contents of cupboard A2, had he been risk assessing cupboard A2, would have been the quantity of aerosols stored within it[3861]. He would have accorded high and urgent priority to moving the aerosols elsewhere[3862]. Standing the considerations mentioned above, he was, it is submitted, right to identify this as a reasonable precaution.
Had this step been taken, some or all of the deaths might have been avoided.
10. For reasons explained above, a release from an aerosol may have been the fuel which was ignited and which gave rise to the fire. If that was indeed the case, then had the aerosol in question not been in the cupboard, the fire would not have occurred and both the accident and the deaths would have been avoided.
11. In any event, aerosols played a significant - if unusual - role in the development of the fire[3863]. Had there been no aerosols in the cupboard, then (unless it was ignition of fuel which had leaked from an aerosol which set the fire off), a significant fire would still have been able to develop within the cupboard. Test C undertaken by BRE tested just such a scenario. The fire reached a peak temperature within the cupboard of 1100 degrees Centigrade. Heat and asphyxiant gases would have been generated from such a fire at life-threatening levels[3864].
12. However, if the aerosols had not become involved in the fire, the situation would have been different in the following respects:-
12.1. The development of the fire would have been slower[3865]. The fire would have been susceptible to emergency fire-fighting for longer, not only for this reason, but also because staff would not have faced the unpredictable risk of an aerosol exploding[3866].
12.2. The corridor 3 /4 firedoor would not have been blown open. The firedoor would have prevented the ingress of smoke and toxic fire gases into corridor 3 by this route. The relative contributions of this route of transmission and the route through the ducting cannot be determined. However, had the corridor 3/4 firedoor not been blown open, there would not have been any contribution to the toxic atmosphere in corridor 3 from smoke and fire gases passing through that doorway. It is likely that this would have reduced the toxic atmosphere in corridor 3 and the deaths in that corridor might accordingly have been avoided. If, in addition, fire dampers had been fitted in the ducting, it is likely that those deaths would have been avoided.
13. If the cupboard doors of cupboard A2 had been secured, this would have contained the fire for considerably longer than the actual situation at Rosepark, and for sufficient time for other protective steps to have been taken. However, even if the cupboard doors had been secured, the benefit of securing the doors would have been compromised if an aerosol had exploded with sufficient force to disrupt the cupboard doors. It follows that the absence of aerosols from cupboard A2 might have made a difference so far as the deaths in corridor 4 are concerned, if in addition the cupboard doors had been secured.
14. Accordingly, had aerosols not been stored in quantities in cupboard A2, this might have avoided the deaths of residents in corridor 3[3867]. It might have avoided the deaths of residents in corridor 4 if at least one of the following additional precautions had been taken:-
14.1. Staff had gone promptly to the scene in time to engage in emergency fire-fighting[3868]; or
14.2. The cupboard doors had been secured[3869].
CHAPTER 44(3)(E) (formerly 38(3)(E)) PROTECTION OF THE MEANS OF ESCAPE - SUBDIVISON OF CORRIDOR 4
The Crown proposes the following determination:
1. It would have been a reasonable precaution to reduce the number of residents in any subcompartment by subdividing corridor 4.
2. Had this precaution been taken, some of the deaths might have been avoided.
The former determination is addressed in paragraphs 1-7 below, the latter in paragraphs 8-10.
It would have been a reasonable precaution to reduce the number of residents in any subcompartment by subdividing the corridor.
Introduction
1. To a fire safety professional, it would have been obvious that Corridor 4 was too long. It would have been obvious that the number of persons accommodated in that corridor - 14 - would be too many for an effective evacuation[3870].
2. Closer examination simply confirms the position.
2.1. Any resident of Rosepark would be someone who could no longer live independently, would be elderly, and would be likely to suffer from one or more of the illnesses and disabilities of age. At any given time, the resident population was likely to include individuals with severe mobility difficulties and/or dementia[3871].
2.2. The resident population in corridor 4 at the time of the fire was an exceptionally dependent population[3872]. It included two amputees (one bilateral)[3873], two individuals who had at the time of the fire recently had leg operations[3874] (one of whom had an in situ catheter), a man who was registered blind[3875], and two individuals who were, by reason of dementia, unable to communicate their needs[3876]. The only resident of the corridor who was able to mobilize without a walking aid suffered from Alzheimer's disease and was very confused[3877]. All of these residents would require assistance in an emergency, and some would require the assistance of at least two members of staff if they were to be moved.
2.3. The landing of the south-west stairwell was not large enough to accommodate all of the residents of corridor 4[3878]. Any evacuation in that direction would require to include taking residents downstairs at least to the next landing. None of the residents of corridor 4 could have negotiated the stairs without assistance and some of them would require to have been carried down the stairs[3879].
2.4. Without undertaking any detailed assessment, it is plain that evacuation of this population in an emergency would present very serious challenges. Ms Midda's exercise, described in Chapter 21 above, provides some sense of the timescales which would be liable to be involved simply in the process of moving these residents out of the corridor (without taking any account of the time taken to move them downstairs). She estimated that it would take between 22.5 and 37 minutes to evacuate the residents of corridors 3 and 4 in the event of a fire in cupboard A2[3880].
2.5. It is also obvious that in the course of an evacuation of fourteen residents, over time, staff would become progressively tired[3881].
3. A suitable and sufficient risk assessment would have disclosed that the residents of corridor 4 could not have been evacuated within a reasonable time.
4. There would, in principle, have been various options open to the management at Rosepark Care Home to deal with the problem. For example[3882]:-
4.1. As an interim measure, they could simply have decided to take fewer residents.
4.2. They could have moved highly dependent residents to other locations[3883].
4.3. They could have installed a sprinkler system.
4.4. They could have employed additional staff on the nightshift[3884].
The obvious response, however, would have been to subdivide the corridor[3885]. This was in fact done following the fire, both at Rosepark and at Croftbank[3886].
Guidance
Home Office "Green Guide"
5. The Home Office "Green Guide" stated[3887]:
"Protected areas
1.8. When it is practicable to achieve the recommended standards of fire resistance ... in the elements of structure, the parts of residential care premises used as sleeping accommodation should be divided into protected areas. ...
1.9. The number of beds in a protected area should not exceed 10. However in the case of purpose-built accommodation up to 12 beds will be acceptable."
HTM 84
6. HTM 84 stated[3888]:
"In most residential care premises, staff are always present and are expected to play a role in evacuation. Should a fire start, it will be first necessary to evacuate the sub-compartment of origin, and the number of staff available will influence the speed of evacuation. Such evacuation may be progressive horizontal evacuation if there are other sub-compartments to which it is possible to move without a significant change in level, and from where there is the potential for vertical escape to the ground floor, should that become necessary.
The speed of evacuation and the number of residents who can be evacuated before staff are exhausted will depend upon the number of staff available. Therefore the number of resident beds which can be permitted in each sub-compartment depends on the minimum number of staff awake and available on the premises (normally the night-time staffing level).
In medium and large premises the maximum number of resident beds permitted in each sub-compartment is:
Less than 2 staff awake at all times 5
2 or 3 staff awake at all times 7
4 or more staff awake at all times 9"
HTM 84 defined premises with 10 or more residents as large premises[3889].
SHTM 84
7. SHTM 84 stated[3890]:
"In most residential care premises, staff are always present and are expected to play a role in evacuation. Should a fire start, it will be first necessary to evacuate the sub-compartment of origin, and the number of staff available will influence the speed of evacuation. Such evacuation may be progressive horizontal evacuation if there are other sub-compartments to which it is possible to move without a significant change in level, and from where there is the potential for vertical escape to the ground floor, should that become necessary.
The speed of evacuation and the number of residents who can be evacuated before staff are exhausted will depend upon the number of staff available. Therefore the number of resident beds which can be permitted in each sub-compartment depends on the minimum number of staff awake and available on the premises, normally the night-time staffing level.
Requirements
The maximum number of resident beds permitted in each sub-compartment is:
Number of staff awake Max number of beds
Fewer than 2 staff awake at all times 5
2 or 3 staff awake at all times 7
4 or more staff awake at all times 9"
Had the corridor been sub-divided, some of the deaths might have been avoided.
8. The obvious place to subdivide corridor 4 would have been between room 9 and 10 or between room 10 and room 11[3891]. The latter would have been a reasonable approach since it would have achieved an equal number of residents (7) in each section[3892].
9. Had there been effective subcompartmentation between room 10 and room 11, assuming that the subcompartmentation had been properly done and remained effective[3893], the following deaths would have been avoided:-
9.1. Isabella MacLeod
9.2. Margaret Lappin
9.3. Mary McKenner
9.4. Ellen (Helen) Milne
9.5. Helen (Ella) Crawford
9.6. Annie Thomson
9.7. Margaret Dorothy (Dora) McWee
If the subcompartmentation had been effected to the east of room 10, the death of Robina Burns would also, on the same assumption, have been avoided.
10. The pressure pulses which opened the corridor 3/4 firedoor could well have had the same effect on any firedoor at such a subcompartment. That firedoor might no doubt have been prevented from closing again in the same way as happened with the corridor 3/4 firedoor. It must, however, at least be a lively possibility that these residents would have survived had the compartment been subdivided in this manner[3894].
CHAPTER 44(3)(F) (formerly 38(3)(F)) PROTECTION OF THE MEANS OF ESCAPE - FIRE DAMPERS
The Crown proposes the following determination:-
1. The installation of fire dampers would have been a reasonable precaution.
2. Had this precaution been taken, the deaths in corridor 3 might have been avoided.
The former determination is addressed in paragraph 1 below; the latter in paragraphs 2-11.
The installation of fire dampers would have been a reasonable precaution
1. The installation of fire dampers (in particular, above the corridor 3/4 firedoor) would have been a reasonable precaution.
1.1. The Building Standards (Scotland) Regulations 1981 as amended, applicable at the time of construction, required the installation of fire dampers inter alia above the corridor 3/4 firedoor[3895].
1.2. The warranted drawing specified "Fire dampers to duct where passing through ... cavity barrier or stair enclosure"[3896].
1.3. It was a condition of the warrant that the building be constructed in accordance with the Building Standards and the warranted drawings[3897].
Had fire dampers been installed this might have avoided deaths in corridor 3.
2. Had a fire damper been fitted in 1992, it would have been most likely to have been of the metal shutter type operated by means of a fusible link[3898]. Had such a damper been located above the corridor 3/4 firedoor, the damper, once closed, would have significantly reduced the quantity of smoke travelling along the ductwork and into corridor 3 and the central stairwell although it might not have prevented it altogether[3899].
3. Before the damper operated, some smoke would have passed along the ductwork[3900]. Although fire dampers of this sort respond nominally to a temperature of 76 degrees Centigrade, by reason of thermal inertia, they actually operate only when the gases around them are at a higher temperature[3901]. In Tests 2 and 3 of the BRE ventilation work, smoke had passed along the ducting to the location of the outlet into the central stairwell for more than a minute before the damper switch operated[3902]. In Test 4, smoke passed along the ducting to that location for almost three minutes before the damper operated[3903].
4. Had a fire damper been installed where the ventilation ducting passed above the corridor 3/4 firedoor, the quantities of smoke which would be likely to have passed into corridor 3 through the ducting prior to operation of the damper would not on their own, have been life-threatening[3904]. Smoke and toxic gases would, however, still have entered corridor 3 at the firedoor.
5. The relative significance of the smoke and toxic gases which entered corridor 3 by way of the ducting system (without its damper) and by way of the firedoor cannot be determined with certainty and it seems likely that ingress by the door was more important than ingress via the ducting[3905]. It was only when the extract fan in the ventilation system failed that smoke would have passed into corridor 3[3906]. But, equally, it is not know when in the course of the fire, the corridor 3/4 firedoor was blown open. According to Mr. Shipp, however, the quantity of smoke passing into corridor 3 through the ducting could have been (though it probably was not) sufficient on its own to have been life-threatening[3907]. It may at least be said that the smoke and toxic gases which entered corridor 3 via the ducting contributed to the toxic atmosphere there, although the extent to which it did so cannot be determined.
6. The potential of a toxic atmosphere composed of the products of combustion to cause incapacitation and death depends on the concentration of those toxic components in the atmosphere and the duration of exposure[3908]. In these circumstances, where injury or death has been caused by such a toxic atmosphere, any source which makes a material contribution to that toxic atmosphere may, in a situation of uncertainty as to the precise contributions made by that source and other sources, properly be regarded as causing the injury or death[3909].
7. In the present case, as a result of the toxic atmosphere within corridor 3, two residents of corridor 3 died. It is not necessary to go so far as to say that the absence of fire dampers did in fact make a critical difference to the survivability of the toxic atmosphere in corridor 3. It suffices for the purposes of a determination that, in a situation of uncertainty, if fire dampers had been in place, this might have avoided the deaths in corridor 3.
8. Furthermore, had such a damper been installed, the quantity of smoke reaching the central stairwell would have been relatively small. People would have been aware of it but it would not have been threatening and would not have been sufficient to deter an experienced fire-fighter from entering the stairwell[3910]. This might have affected the behaviour of the staff in the first instance, and the fire fighters.
9. Shortly before the Fire Brigade arrived Miss Queen and Mrs Richmond evacuated the residents of corridor 1 to the Rose Lounge[3911]. They tried to go beyond the second fire door to get other residents out but were unable to do so by reason of the smoke logging in the area of the lift[3912].
10. Had conditions in the central stairwell allowed Miss Queen and Mrs Richmond to get beyond the central stairwell and into corridor 3 it is likely that they would have observed significant smoke logging. Station Officer Campbell's operational plan was based on information given to him by the staff which led him to believe that there was a fire situation at the lower level[3913]. When he instructed the persons reported instruction Mr Campbell was satisfied that the smoke was contained in the area of the lift and that, therefore, he had adequate resources to deal with the incident[3914].
11. On the reasonable assumption that Miss Queen and Mrs Richmond would have reported observing significant smoke logging in corridor 3, the assumptions which advised Mr Campbell's decision not to seek additional resources would have been shown to be invalid. It might be reasonable to conclude that he would have sought additional resources for both firefighting and search and rescue 0450 hours (when the persons reported message was sent). It can at least be said that the conduct of the fire services might have been different in a manner which could have expedited the rescue of those residents who were still alive.
12. If the Sheriff Principal does not consider that a determination should be made in respect of fire dampers under section 6(1)(c), he might wish to consider making a determination in relation to fire dampers under section 6(1)(e).
CHAPTER 44(4) (formerly 38(4)): PROMPT, ACCURATE AND EFFECTIVE ACTION BY STAFF
The Crown proposes the following determination:-
1. The following would have been reasonable precautions:-
1.1. The provision of clear information at the fire alarm panel (and in particular a diagrammatic representation), so as to enable staff to identify quickly and accurately the location of any detector which had been activated;
1.2. Adequate training and drills for staff in the action required of them in an emergency; and
1.3. Instruction for Isobel Queen in the new fire alarm panel.
2. Had these precautions been taken, they might have avoided each of the deaths.
Introduction
1. In the event of an emergency, speed is of the essence[3915]. Fires start small and grow to a point where they become life-threatening. As the evidence about the fire at Rosepark illustrates, there may be a short but critical window of opportunity during which effective action can make all the difference between a safe outcome and a tragedy.
2. It is accordingly critically important, if there is to be an appropriate response to a fire alarm: (a) that staff quickly and accurately identify where the detector which has alarmed is located[3916]; and (b) respond promptly and effectively to the alarm[3917].
3. With a view to achieving these aims:
3.1. It would have been a reasonable precaution to provide clear information at the fire alarm panel such as would enable staff to identify quickly and accurately the location of the detector which has alarmed[3918];
3.2. It would have been a reasonable precaution for staff to have been adequately trained and drilled in the actions required of them in an emergency[3919]; and
3.3. It would have been a reasonable precaution for Isobel Queen to have been given instruction in relation to the new fire alarm panel [3920].
4. Each of these precautions (and, a fortiori, if they had all been taken) might have avoided the deaths.
5. Each of these matters is dealt with in turn in the following subchapters.
6. If the Court does not consider it appropriate to make a determination under section 6(1)(c) in relation to any of these matters, the Court is invited to consider making a determination in respect of that matter under section 6(1)(e).
CHAPTER 44(4)(A) (formerly 38(4)(A)): INFORMATION AT THE ALARM PANEL
The Crown proposes the following determination:
1. It would have been a reasonable precaution to have provided clear information at the fire alarm panel (and, in particular a diagrammatic representation) enabling staff to identify quickly and accurately the location of the detector which had been activated.
2. This precaution might have avoided some or all of the deaths.
The former is addressed in paragraphs 1-4 below; the latter in paragraphs 5-12.
It would have been a reasonable precaution to have provided clear information at the fire alarm panel (and, in particular a diagrammatic representation) enabling staff to identify quickly and accurately the location of the detector which had been activated.
1. A conventional fire alarm system, such as that which existed at Rosepark, depended on the member of staff in charge at the panel accurately identifying the relevant area of the building which corresponded to the zone which has been activated at the panel[3921]. It was accordingly essential that the information at the panel clearly describe the area to which the zones relate[3922].
2. The zoning information at the fire panel was ambiguous and laid out in a confusing manner[3923]. For someone looking at that document and trying to work out where a fire was by reference to the descriptions, there was a potential for confusion[3924].
3. In particular, there was no diagrammatic representation of the building showing the division into zones at or adjacent to the panel[3925]. The provision of such a zone plan would have been a reasonable precaution.
3.1. The provision of such a diagrammatic representation near the fire alarm panel was at all relevant times recommended in the relevant British Standard[3926]. The primary purpose of such a diagrammatic representation was to give an unambiguous indication to those responding to the alarm (both staff and members of the emergency services) where exactly the fire is located in terms of the zone[3927]. Mr. Todd confirmed that the information at the fire alarm panel as shown on Pro 334C was not sufficient to meet the recommendations of the British Standard[3928].
3.2. There was no good reason why such a diagrammatic representation at Rosepark could not have been provided at Rosepark. Mr. Fothringham of Comtec, who had a contractual responsibility for maintenance of the fire alarm system until 2003, had started producing zone plans for care homes about a year or two after he installed the system at Rosepark[3929]. There was, in fact, such a zone plan at Croftbank[3930].
4. When Rosepark was constructed, there were available analogue addressable fire alarm systems which would have identified which specific detector had been activated as well as the zone in which that detector was located[3931]. The decision not to install an addressable system in the early 1990s would not, however, fall to be criticized[3932]. The installation of a conventional system in a Care Home would still today comply with the British Standard. Replacement of a conventional system with an addressable system would not be straightforward and would involve a considerable cost (some £20,000 was Mr. Todd's estimate)[3933]. In these circumstances, provided adequately clear and unambiguous information could be provided in other ways, the Crown does not invite a finding that it would have been a reasonable precaution to install an analogue addressable system. However, Mr. Todd did give cogent reasons for considering an analogue addressable system preferable in the context of a Care Home and invited the Sheriff Principal to make a recommendation that the British Standard should be revised to reflect these benefits[3934].
This precaution might have avoided some or all of the deaths.
5. Right at the outset, a critical error was made as to the location of the alarm which had been activated. Instead of going to corridor 4 where the fire actually was, staff investigated the foyer area and downstairs. In effect, they investigated all parts of the building other than the area where the fire actually was[3935].
6. Had Isobel Queen accurately identified at the outset the location of the alarm which had activated, she would - even applying the inadequate procedure which pertained at the Home - have immediately sent two members of staff to investigate that area.
7. There was a window of opportunity (albeit a short one) during which prompt first aid fire fighting by the staff on duty could have extinguished the fire[3936]. For the following reasons, it may be concluded that this window of opportunity was between about 2 and 5 minutes from the sounding of the alarm.
7.1. By the time the fire had developed to the extent shown between two minutes and three and a half minutes into BRE Test 1, the fire would not have been fightable by the lay public, certainly if they were not trained and experienced in the use of fire extinguishers[3937].
7.2. In the real situation there would, however, have been additional time between the sounding of the fire alarm and the equivalent of ignition in the BRE Test[3938]. It may be concluded, for reasons explained in Chapter 32 above, that this period was not more than about two minutes[3939].
7.3. Once the first aerosol exploded, it would not have been reasonable even for a trained and experienced person to seek to tackle the fire using a hand-held extinguisher[3940]. In BRE Test 1 this occurred 4 minutes 23 seconds from the ignition of the flaming cribs. In Tests 2 and 3 this occurred significantly later. In any event, the fire would have reached the point mentioned at 7.1 above - i.e. the point when the fire would no longer be fightable by a layperson - before that point.
8. It would have taken less than 30 seconds at a run - for staff to reach cupboard A2 from the fire alarm panel[3941]. There were fire extinguishers located en route, which staff could have picked up on the way - and properly trained staff would be expected to do this[3942].
9. Once staff reached the cupboard, they would have had to make a decision whether or not to engage in emergency fire-fighting. Assuming staff had picked up an appropriate extinguisher, the fire at that stage (which would be at or around the stage of ignition in the BRE test or slightly after) would still have been capable of being dealt with by first aid fire-fighting and it could be anticipated that the fire would be extinguished avoiding all the deaths.
10. Even if the staff had decided that emergency fire fighting was not feasible, one would expect properly training staff to have closed the door of the cupboard and the open bedroom doors[3943]. This would have bought significant additional time and would have provided protection to residents in their own rooms while further emergency steps were taken[3944]. Amongst those steps would have been a 999 call to the Fire Brigade[3945]. The arrival of the Fire Service would have been significantly expedited as compared with the events of the actual incident itself.
11. Had staff started to evacuate residents pending the arrival of the Fire Service and had an aerosol exploded and either disrupted the doors of the cupboard or itself escaped as a missile, any staff and residents then in the corridor would have been at significant risk. It accordingly cannot be said that all the deaths would have been avoided on this scenario. However it can be said with some confidence that some of the deaths in corridor 4 and the deaths in corridor 3 would have been avoided.
12. One cannot know for certain that the provision of a diagrammatic representation of the zoning arrangements would, on its own, have resulted in Isobel Queen making an accurate identification of the zone. However, it might well have done. The CCTV footage shows evident confusion as staff tried to relate the information on the zone card to the indication on the panel. Isobel Queen herself believed that a diagram which illustrated which zone might have made a difference[3946].
CHAPTER 44(4)(B) (formerly 38(4)(B)): TRAINING AND DRILLS
The Crown proposes the following determination:
1. It would have been a reasonable precaution for staff to have been provided with adequate training and drills in the action required of them in an emergency.
2. Had this precaution been taken, some or all of the deaths might have been avoided.
The former is addressed in paragraphs 1 to 6 below; the latter in paragraph 7.
It would have been a reasonable precaution for staff to have been provided with adequate training and drills in the action required of them in an emergency.
General
1. Fires are relatively rare events. Yet in the event of a fire, prompt and effective action may make all the difference between a safe outcome and a disaster. It is imperative that the staff of a Care Home are equipped to take prompt and effective action in an emergency.
2. The only way to do this is through effective training. In that regard:
2.1. It is necessary that training be delivered not only at the start of a staff member's employment but also regularly thereafter[3947].
2.2. It is necessary that the training be delivered in an effective manner.
2.3. It is necessary that the training be related to the particular workplace[3948].
2.4. It is necessary that the training include the communication of information about the way fires may behave in enclosed spaces, which is outside ordinary experience[3949].
2.5. The training requires to be delivered by a knowledgeable and credible individual[3950].
2.6. It is necessary that the training, for any members of staff who may be required to undertake emergency fire-fighting, include sufficient training in the use of a fire extinguisher to enable those staff members to be able confidently to engage in emergency fire fighting.
2.7. It is necessary that staff who are expected, in an emergency, to undertake particular responsibilties (such as a nurse in charge, particularly on nightshift) are given training appropriate and adequate to those responsibilities[3951].
2.8. In the context of an environment such as Rosepark it was necessary for training to include consideration of evacuation[3952].
2.9. Confirmation of competence is an important output of training. In other words it is necessary to check that staff have really taken on board the key lessons of the training[3953].
2.10. All staff must be subjected to drills, not only to test that the training has been effective, but to give staff practical experience[3954].
2.11. Particular attention requires to be given to the training and drilling of staff who will be on duty at times of particular risk, such as at night, and also because nightshift, which may involve part-time staff, who have more limited contact with the other staff at the home, presents its own challenges in terms of making sure that all staff are trained and receive drills[3955].
Home Office "Green Guide"
1. The Home Office "Green Guide" stated[3956]:
"5.1. In the event of fire the safety of residents depends heavily upon the ability of staff to respond promptly. It is of vital importance that all members of staff should be made aware of, and instructed and trained to ensure that they understand, the fire precautions applicable to the building and the action to be taken in the event of fire. This should include staff on shift duties or other regular duties outside the normal working hours. The aim should be to ensure that all staff receive instruction, practical demonstration, and training appropriate to their responsibilities in the event of an emergency. These should be based on written instructions. All residents should be made aware of evacuation procedures to be followed in the event of fire and those residents who are able should be encouraged to participate in fire drills.
5.2. Instructions should be given by a competent person, at such intervals as will ensure that all members of staff are instructed at least twice in each period of 12 months.
5.3. Instruction and training for staff generally should cover the following matters:
The action to be taken upon discovering a fire
The action to be taken upon hearing the fire alarm
...
The correct method of calling the fire brigade
...
Appreciation of the importance of fire doors and of the need to close all doors at the time of a fire and on hearing the fire alarm
How to move elderly persons and others who may require assistance in an emergency, including where appropriate horizontal movement between protected areas.
5.4. Except in small establishments, practice fire drills should be carried out at least twice a year. ...
5.5. Such details as are necessary to show the training and instruction given should be recorded. The following are examples of matters which may need to be included in such a record:
date of the instruction or exercise
duration;
name of the person giving the instruction;
names of the persons receiving the instruction; and
the nature of the instruction, training or drill.
5.6. In all premises one person should have overall responsibility for organizing staff training and co-ordinating the actions of the staff in the event of fire.
5.7. At conspicuous positions in all parts of the premises printed notices should be exhibited stating in concise terms the essentials of the action to be taken upon discovering a fire and on hearing the fire alarm. Notices giving more detailed instructions should be exhibited in all staff rooms, in staff residential accommodation and on notice boards."
HTM 84
2. HTM 84 stated[3957]:
"Owners and managers of residential care premises should ensure that all staff (including temporary and agency staff) are given appropriate information about, and instruction and training in, the fire precautions to be taken or observed in the premises, including the action to be taken in case of fire.
Information, instruction and training should be given at the start of the person's employment in the residential care premises and whenever there is a change in the fire risk. It should be repeated at least twice every year.
Practice fire drills should also be held at least once every year.
Notes
Fire safety training should be specific to the residential care premises and should cover:
- fire prevention;
- the correct action to be taken when a fire is discovered;
...
- evacuation and escape procedures;
...
Fire safety information, instruction and training should be given by competent persons, whether in the normal workplace or elsewhere.
...
Every person identified in the emergency plan as a person responsible
for supervising and controlling the putting into effect of the plan should be given access to the fire risk assessment and to the emergency plan, and should be given such additional instruction as will enable him or her to discharge those responsibilities."
SHTM 84
3. SHTM 84 was in very similar terms but added to the list of matters which fire safety training should cover: "the correct action to be taken on hearing the alarm"[3958].
Fire Safety: An Employer's Guide
4. Fire Safety: An Employer's Guide contained various sections about training, including the following[3959]:
" The type of training should be based on the particular features of your workplace and:
- should explain your emergency procedures;
- take account of the work activity, the duties and resposibilities of employees
- take account of the findings of the risk assessment; and
- be easily understandable by your employees.
...
Training should be repeated as necessary (usually once or twice a year) so that your employees remain familiar with the fire precautions in your workplace and are reminded what to do in an emergency - including those who work in the premises outside normal hours, such as cleaners or shift workers. ...
Training should preferably include practical exercises, e.g. fire drills, to check people's understanding of the emergency plan and make them familiar with its operation. ...
Your training should include the following:
- the action to take on discovering a fire;
- how to raise the alarm and what happens then;
- the action to take upon hearing a fire alarm
...
- the evacuation procedures for everyone in your workplace to reach an assembly point at a safe place
..."
Lanarkshire Health Board Guidelines
5. The Lanarkshire Health Board Guidelines for Nursing Homes June 1999[3960] specified the following:
"Prior to the opening of the nursing home staff should receive comprehensive training in fire safety and thereafter attend at least one programme of training annually.
Fire drills should be carried out on a regular basis but certainly once every 12 months."
Strathclyde Fire Brigade Fire Precautions Log Book
6. The Strathclyde Fire Brigade Fire Precautions Log Book, Pro 221, drew a distinction between instructions and drills. It suggested two instruction periods in the first month of employment and then (unless otherwise specified by a fire certificate) three monthly for staff on night duties and six monthly for staff on day duties[3961]. It suggested that fire drills should be held six monthly for residential premises[3962].
Management's expectations
7. Alan Balmer regarded it as a reasonable precaution for a care home to have refresher training in matters of fire safety for staff and drills twice a year. There was no particular reason why this should not have been done at Rosepark before January 2004[3963].
8. At the time of the fire in January 2004, Thomas Balmer understood that the training which the staff at Rosepark received comprised[3964]:
8.1. two fire drills a year, at specified times[3965]; and
8.2. "continual use of" the video.
He believed that "training" was delivered in the context of the drills.
9. Mr. Balmer believed that drills were held at about 2 pm and 8 pm (or 1.30 and 8.30). Nightshift staff were expected to come in early to attend the latter. They would be told that there was going to be a fire drill half an hour before the shift started and asked to come in to attend that[3966].
Actual arrangements at Rosepark
3. The actual arrangements for training and drilling of staff at Rosepark have been described in Chapter 20. These arrangements were woefully inadequate.
3.1. The only fire training which staff received was on induction[3967]. For most members of staff that was the only fire training they had received[3968].
3.2. The training at induction principally involved watching the video passively and completing the questionnaire[3969]. There was little evidence of this being used an opportunity for substantive discussion or any attempt to relate what was seen in the video to the circumstances of Rosepark[3970]. The way the questionnaire was administered typically did not really confirm that staff had absorbed what they had been told from the video[3971].
3.3. No refresher training was provided for staff[3972].
3.4. Ms Meaney, who delivered the induction training, had herself no expertise in fire safety. She herself stated that she could not do more that provide "fire awareness".
3.5. There was no training in the use of fire extinguishers. The element of the video about fire extinguishers was inadequate to give staff confidence and competence to carry out first aid fire fighting.
3.6. During the three years before the fire, fire drills had not been held twice a year or every six months. Drills were held haphazardly[3973].
3.7. Night staff were neglected. The night staff who gave evidence had never had the benefit of a fire drill at Rosepark[3974]. This left them very vulnerable[3975].
4. These inadequacies were reflected in the training and drilling of the staff who were on duty on the night of 30-31 January 2004[3976].
4.1. Isobel Queen, Irene Richmond and Yvonne Carlyle had each been shown the video once. Apart from that none of them had received any fire training at Rosepark. Brian Norton had received no fire training at Rosepark.
4.2. None of them had experienced a fire drill at Rosepark.
5. Any of these members of staff might have been called upon to engage in first aid fire-fighting. None had been given adequate training at Rosepark in the use of fire extinguishers. The information provided on the video was inadequate in that regard.
6. Isobel Queen was expected to be the nurse in charge of night duty. In that regard, she was expected to take command of the situation, to direct the other staff, and to take effective decisions. In particular, it was essential that she identify immediately and accurately the area of the Home in which the alarm had been activated. Isobel Queen could not even recall being told the fire procedure. She had no real understanding of the zoning arrangements.
Had this precaution been taken, the deaths might have been avoided.
7. The uncertainty and confusion which may be seen on the CCTV footage is just what one might expect to happen in a Home which did not have an effective training regime[3977]. Staff who had been effectively trained and drilled would have been expected to respond in a significantly more decisive manner[3978]. Had staff been effectively and appropriately trained, the following is the likely course of events even assuming staff followed the emergency procedure which was prescribed at Rosepark.
7.1. Isobel Queen would have immediately identified correctly the area of the Home where the alarm had been activated. She herself attributed the error which she made to a lack of training[3979]. Further, had she been properly trained she could have had no misapprehension as to her role and would have been equipped to act effectively in that context.
7.2. She would immediately have dispatched two members of staff to that area.
7.3. Those members of staff would have arrived at the location in time to engage in emergency fire-fighting.
7.4. If they had been effectively trained in the use of fire extinguishers, it could be anticipated that the fire might have been extinguished at this stage[3980].
7.5. Even if they had not been able to do this, well-trained staff would have shut the cupboard door and the bedroom doors in the area. This would have bought material additional time and provided temporary protection to the residents in their rooms[3981].
7.6. Even applying the procedure which was followed at Rosepark, one of the members of staff would have returned to tell Isobel Queen that there was a fire and a 999 call would have been made. The arrival of the fire service would have been significantly expedited as compared with the events of the night.
8. One may conclude that in these circumstances some or all of the deaths might have been avoided - indeed it is likely that some or all of the deaths would have been avoided - for the reasons set out above.
CHAPTER 44(4)(C) (formerly 38(4)(C)): INSTRUCTION FOR ISOBEL QUEEN IN RELATION TO THE NEW FIRE ALARM PANEL
The Crown proposes the following determination:
1. It would have been a reasonable precaution for Isobel Queen to have been given instruction in relation to the new fire alarm panel.
2. Had this precaution been taken some or all of the deaths might have been avoided.
The former paragraph is addressed in paragraphs 1 to 4 below, the latter in paragraphs 5 to 6.
It would have been a reasonable precaution for Isobel Queen to be given instruction in relation to the new fire alarm panel.
1. The new fire alarm panel operated on the same principles as the old one. But it looked significantly different, and the steps which required to be taken to undertake various operations were different[3982]. Further, even a member of staff familiar with the existing zoning arrangements, faced with a new panel could not know, without instruction, whether or not the zoning arrangements had also changed.
2. That being the case, anyone who was to be a nurse in charge should have been given sufficient instruction in the new panel to enable him or her to interpret it accurately and quickly and to operate it appropriately in an emergency[3983].
3. This would have involved at least:
3.1. Drawing the new panel to the attention of any nurse who was to be a nurse in charge.
3.2. Explaining to the nurse in charge that, although the panel had changed, the zoning arrangements had not changed.
3.3. Giving the nurse in charge sufficient information to enable her to interpret the indications on the panel accurately.
3.4. Giving the nurse in charge sufficient information to enable her to carry out the basic operations at the panel - silencing and resetting - correctly.
4. None of these steps was taken. Isobel Queen was ignorant of the existence of the new panel until she was confronted by it when the fire alarm sounded on 31 January 2004.
Had this precaution been taken some or all of the deaths might have been avoided.
5. Had Isobel Queen received such instruction in relation to the new panel, she is much more likely to have accurately identified the area of the Home where the alarm had been activated. Isobel Queen identified "being orientated to the fire panel" as the main item of training which would have made a difference to the way she responded[3984].
6. In that event, some or all of the deaths might have been avoided for the reasons set out above[3985].
CHAPTER 44(5) (Formerly 38(5)) - EARLY INVOLVEMENT OF THE FIRE BRIGADE
Proposed determination:-
1. The following would have been reasonable precautions:-
1.1 The exhibition, on prominent display in Matron's office, of a laminated sheet specifying clearly what information should be given to the Control Operator by the member of staff who calls the Fire Brigade;
1.2 An immediate call to the Fire Brigade when the fire alarm sounded and, to that end:-
1.2.1. An Emergency Procedure which provided for an immediate call to the Fire Brigade; and
1.2.2. Automatic transmission of a signal to the Fire Brigade in the event that the fire alarm was activated.
1.3 Classification by Strathclyde Fire and Rescue Service of Rosepark Care Home as "special risk" under Operational Technical Note Index No. A6 such that each watch at Bellshill Fire Station visited it annually;
1.4 Provision to the Control Room Operator by Isobel Queen of the correct access address for Rosepark Care Home, namely Rosepark Avenue;
1.5 For Station Officer Campbell of E031 to have read, and taken account of, the additional information about access contained in the turn-out slip received at Bellshill Fire Station and Hamilton Fire Station;
1.6 For Leading Firefighter McDiarmid of E012 to have read, and taken account of, the additional information about access contained in the turn-out slip received at Bellshill Fire Station and Hamilton Fire Station;
1.7 For E031 and E012 to have attended at Rosepark Avenue.
2. Had these precautions been taken, they might have avoided the deaths of Isabella MacLachlan, Margaret Gow, Robina Burns and Isabella MacLeod.
Discussion:-
1. Evidence was given by Sir Graham Meldrum on the mobilisation of appliances of Strathclyde Fire and Rescue Service, and the risk catagorisation of Rosepark. Sir Graham was plainly qualified to do so and his conclusions should be accepted.
2. In the case of a residential care home, where one is dealing with a large life risk to elderly people, it is absolutely essential that the home's fire procedure should require a call to the Fire Brigade immediately the fire alarm sounds[3986].
3. There are no circumstances in which one would condone a procedure that involved sending members of staff to look and see if there was a fire before calling the Fire Brigade. Any delay would be a matter of grave concern[3987].
4. As a matter of practice, such is the serious life risk in a residential care home, the priority should be to call the Fire Brigade and then start evacuating the residents[3988]. Time is of the essence because even a small fire is capable of generating large volumes of smoke which could result in casualties[3989]
5. It would have been a reasonable precaution for the call to SFRS to have been made as soon as possible after the fire alarm went off at Rosepark. The failure to call SFRS immediately was a contributory factor in the overall delay to the commencement of firefighting operations[3990]
6. To that end:-
6.1. The Emergency Plan at Rosepark should have provided for an immediate call to the Fire Brigade.
6.2. It would have been a reasonable precaution to have installed arrangements for automatic transmission of a signal to the Fire Service in the event of the fire alarm being activated. This would not have required any alteration to the existing fire alarm system and would not have been costly[3991].
7. Since time is such a significant factor in any call-out to a residential care home, it is equally critical that any additional information pertaining to access should be communicated accurately by staff.
8. It would have been a reasonable precaution to have had on prominent display in Matron's office a laminated sheet specifying clearly what information should be given to the Control Room operator by the member of staff who calls the Fire Brigade.
9. Such a notice would facilitate the transmission of accurate information about the incident, including access to the home, in an otherwise stressful set of circumstances[3992]. Any emergency plan needs to provide clear instructions on how the Fire Brigade will be called in an emergency, and staff need to be trained to understand the arrangements for calling the Fire Brigade[3993].
10. Isobel Queen knew that the bottom gate at New Edinburgh Road was locked and that the correct access in the circumstances was via Rosepark Avenue[3994]. It would have been a reasonable precaution to have given that address to the Control Room operator.
11. The Control Room had a facility for communicating additional information to operational personnel by way of the turn-out slip.
12. On the evidence it is reasonable to conclude that Station Officer Campbell either did not read the additional information on the turn-out slip, production 928 (albeit it referred, erroneously, to Rosepark Gardens), or, if he did, he took no account of it.
13. It would have been a reasonable, indeed obvious, precaution for Station Officer Campbell to have read the additional information on the turn-out slip and acted in accordance with it. Additional information in any mobilisation slip is very important and should always be read[3995]. It is recognised that a complicating factor is the erroneous reference to Rosepark Avenue in the turn out slip. In that context it is accepted that the short journey time probably did not allow for a search for Rosepark Avenue in circumstances where the VMDS was inoperative and the section 1(1)(d) information was not clear on the correct means of access. However, the fact that the turn out slip contained that erroneous address cannot have been known[3996]. It is not clear why even a journey time of 109 seconds should not have afforded the opportunity to read the additional information on the turn out slip about the address, especially given that the information about smoke appears to have been read and digested[3997]. It is submitted on behalf of SF&R that had Mr Campbell read the information on the turn out slip and worked out that it was a reference to Rosepark Avenue and directed the vehicle to Rosepark Avenue, it is likely, because of the narrowness and congestion within Rosepark Avenue that the arrival time of the appliance at the front entrance would be some moments behind the actual arrival time as New Edinburgh Road[3998]. The effects of narrowness and congestion were no spoken to by Colin Gray, the driver of E012. On the contrary his evidence was that it wasn't difficult to drive along Rosepark Avenue[3999]. Indeed Mr Buick estimated that it only took about 30-40 seconds to move the appliances from one end of the building to the other[4000]. While that may seem optimistic it is not suggestive of difficulty occasioned by narrowness and congestion.
14. It is reasonable to conclude that, had he been familiar with the premises through a process of annual familiarisation, it is probable that Station Officer Campbell would have responded even to the erroneous reference to Rosepark Gardens by attending at the known access at Rosepark Avenue[4001]. Familiarisation was a means whereby confusion and delay consequent on the terms of the turn out slip could have been avoided[4002]
15. It would have been reasonable to have catagorised Rosepark as "special risk". The main effect of that designation would have been in relation to the frequency of familiarisation visits. There would be an annual visit by each watch[4003]. Those with local knowledge appear to have had little difficulty attending at Rosepark Avenue[4004].
16. The justification for catagorising Rosepark as "special risk" related to the number of residents to staff at night, and the degree to which residents would require assistance in the event of evacuation[4005].
17. Section 2.4.1 of Operational Technical Note No. A124, issued by Strathclyde Fire and Rescue Service, now provides that each watch should visit each care home in the station area at least once in every calendar year[4006].
18. Since E012 attended at New Edinburgh Road because that is where E031 was positioned[4007] it is reasonable to conclude that it would have been re-positioned in short order to Rosepark Avenue had E031 attended at Rosepark Avenue. It would, in any event, have been a reasonable precaution for Leading Firefighter McDiarmid to have read, and acted upon, the additional information about access in the turn-out slip. The journey from Hamilton was longer. Mr McDiarmid's evidence was that he thought that the information about Rosepark Gardens had registered with him at the time when they left the fire station[4008]. Given the importance of reading the additional information[4009] it is difficult to see how criticism of Mr McDiarmid, of the kind suggested in the submissions of SF&R[4010], could be merited.
Proposed determination
Had these precautions been taken the deaths of Isabella MacLachlan, Margaret Gow, Robina Burns and Isabella MacLeod might have been avoided
Delay and its consequences
1. There was a delay of 9 minutes between the sounding of the alarm and the 999 call by Isobel Queen[4011].
2. If the call had been made immediately the actual times of rescue of the residents who were brought out of corridors 3 and 4, but subsequently died, would have been advanced by a commensurate period of time[4012]
3. E031 initially attended at New Edinburgh Road at 0442 hours. It did not reach the Rosepark Avenue entrance until 0449 hours[4013].
4. A period of 6 minutes elapsed before BA wearers were available to be deployed by Station Officer Campbell resulting from the attendance of E031 at New Edinburgh Road. This is calculated by reference to the 7 minute time lapse occurring between 0442 hours and 0449 hours, less one minute to allow for the appliance to enter Rosepark Avenue (which it would have to have done in any event)[4014].
5. A period of 6 minutes was significant in the context of the type of incident that was unfolding at Rosepark[4015].
6. Some time is likely to have been lost by the attendance of EO12 at New Edinburgh Road although, given the logged attendance time of 0447 hours, the time loss is likely to have been more marginal than that relating to EO31. However, the evidence showed that the first member of the crew from E012 to enter the foyer of Rosepark did not do so until 0451 hours[4016]
7. The vital information which Station Officer Campbell required to obtain and assimilate before deploying his firefighters was as follows:
· Whether anybody was involved;
· Whether anybody was trapped, and, if so, where;
· The number of residents in the Home;
· Whether any residents were unaccounted for;
· Whether the residents were in their bedrooms;
· Whether, if they were, the bedroom doors were closed;
· The location of the fire alarm panel[4017].
8. The obtaining of such vital information ought to have taken no more than a minute[4018].
9. The actual briefing of BA teams could have been very brief because until they had reached the smoke logged parts of the building it would have been difficult to ascertain what the real situation was[4019]
10. In the circumstances it is submitted that had E031 attended initially at Rosepark Avenue, and had Mr Campbell obtained the vital information he required in the time indicated by Sir Graham that he could have done, then BA team 1 could have commenced operations at least five minutes earlier than it did (allowing for a minute for assimilation of the vital information)[4020]. On the matter of whether Mr Campbell's evidence (to the effect that there was no delay caused by him having to wait for the arrival of E031 and E012) was the subject of challenge[4021], reference is made to the evidence of Mr Campbell on the morning of 12th January 2010[4022]. It is, of course, recognised that Mr Campbell did not accept that there was any such delay, or that the position was altered by his acceptance that the critical information that he sought took a very short period to obtain (and was obtained before he instructed the "persons reported" transmission)[4023].
11. Taking into account the additional, built in, delay of 9 minutes between the sounding of the fire alarm and the 999 call to the Fire Brigade, some 14 minutes were lost before BA team 1 could commence its search and rescue operations.
12. BA team 1 was deployed at about 0451 hours[4024]. BA team 2 deployed at about 0453 hours[4025]. Without a 9 minute delay they would have deployed at about 0442 hours and 0444 hours respectively. Those who were rescued from corridor 3, but subsequently died, would have been rescued 9 minutes earlier than they were[4026].
13. Without a 14 minute delay BA team 1 would have deployed at about 0437 hours Isabella MacLeod would have been rescued 14 minutes earlier than she was[4027]. All things being equal, E011 (which mobilised in response to the message to "make pumps three"[4028]at 0455 hours) would, therefore, have been mobilised 14 minutes earlier than it was, and BA team 4 (comprising the drivers of the two Hamilton appliances[4029]) would have rescued Mrs Burns 14 minutes earlier than she was (ie. 0525 hours).
14. Deployment at any of those times would not have been sufficiently early for any of the deceased who were found dead at the scene to have survived.
Effect of earlier rescue
15. Professor John Kinsella gave evidence about the effects on human health of exposure to the products of combustion. Professor Kinsella also gave evidence about the consequences of earlier rescue of the four residents who were rescued alive from corridors 3 and 4 but subsequently died. Professor Kinsella was plainly well qualified to offer opinion evidence on these matters[4030]. His evidence about the effect of earlier rescue on those residents should be accepted as reasonable.
16. The percentage carboxyhaemoglobin levels of the residents in corridors 3 and 4 at the time of rescue, and the times when earlier rescue might have made a difference, were estimated by Professor Purser. Professor Purser was plainly qualified to offer opinion evidence on those matters. His estimates should be accepted as reasonable.
Effects on human health of exposure to products of combustion
17. Smoke inhalation is a major cause of mortality in fire victims. The immediate effects of mortality at a fire scene are explained in Professor Kinsella's report, Pro 1782[4031].
18. As oxygen is consumed in a fire carbon monoxide is produced in increasing quantities. Carbon monoxide combines with haemoglobin, which transports oxygen around the body. Once combined the carbon monoxide stays combined with the haemoglobin for longer than oxygen. As a consequence the ability of the haemoglobin to deliver oxygen to the body tissues is diminished. The higher the percentage carboxyhaemoglobin, the less oxygen breathed in will be delivered to the tissues[4032]
19. Some of the carbon monoxide inhaled will combine with cells in the body where oxygen is used and impair the utilisation of oxygen by the body tissues. Thus, in a fire, not only are people breathing in less oxygen, they are transporting less oxygen to the tissues, and the tissues are able to use less oxygen because of the blocking effect of the carbon monoxide[4033].
20. An average, non-smoking, city dweller will have an average percentage carboxyhaemoglobin of 2%, and certainly not higher than 5%. A heavy smoker could get as high as 10%, but more normally about 5%[4034].
21. The severity of smoke inhalation is best estimated by measuring the blood carboxyhaemoglobin[4035]. In terms of outcome a carboxyhaemoglobin level in excess of 10% indicates that there has been smoke inhalation. A level of 20% indicates severe smoke inhalation[4036]. However, the chances of survival of an incident of smoke inhalation resulting in a carboxyhaemoglobin level up to, but not exceeding, 40% are high[4037]. A level in excess of 40% presents a much higher risk, and a level in excess of 50% presents a very high risk of mortality[4038].
22. In relation to the effects of inhalation of the products of combustion, age has implications. With age you have increasing numbers of other medical problems known as co-morbidities. With age, there is a progressive reduction in lung volumes. Age also decreases physiological function and reserve[4039]. Cardiovascular, respiratory and neurological diseases greatly increase the risk of dying from smoke inhalation[4040]. However, the presence of age and co-morbidity really of influence in the subsequent clinical course in hospital rather than at the scene where severity of smoke inhalation is what matters[4041]
23. Professor Kinsella agreed with Professor Purser that a level at the scene below 40% carboxyhaemoglobin indicated good prospects of survival. With a level in excess of 50% at the scene death was likely. The outcome at levels between 40% and 50% was uncertain[4042].
24. The back calculation of carboxyhaemoglobin levels in respect of Isabella MacLachlan and Margaret Gow caused Professor Purser to conclude that there was materially more smoke penetration into corridor 3 than had pertained in the BRE Test 1[4043]. It was accordingly the data from these back calculations that Professor Purser used in his consideration of the prospects of survival of Isabella MacLachlan and Margaret Gow in the event of earlier rescue[4044]
Outcomes of earlier rescue of those rescued alive from Rosepark
Isabella MacLachlan
25. Isabella MacLachlan had pre-morbidities of dementia, osteoarthritis and emphysema[4045].
26. Isabella MacLachlan was rescued at about 0455 hours[4046];
27. Professor Purser estimated that her carboxyhaemoglobin level at the time of rescue was between 42% and 55%[4047]
28. Any earlier rescue would have improved her chances of survival[4048];
29. Her time of rescue, if an immediate call to the Fire Brigade had been made, would have been about 0446 hours;
30. Mrs MacLachlan might have survived if she had been rescued at, or before, a point when a her carboxyhaemoglobin level was about 40%[4049];
31. In the opinion of Professor Purser 25 minutes after ignition at 0428 hours, namely 0453 hours, was the point when Mrs MacLachlan's carboxyhaemoglobin level was about 40%[4050];
32. If Mrs MacLachlan had been rescued about 8 minutes earlier than she was, at 0447 hours, her estimated carboxyhaemoglobin level would have been about 27%[4051];
33. Mrs MacLachlan's outcome was much more likely to be favourable at that level of carboxyhaemoglobin notwithstanding her emphysema[4052];
34. Accordingly, even with the first fire appliances attending at New Edinburgh Road, Mrs MacLachlan's death might have been avoided if the Fire Brigade had been called immediately;
35. By parity of reasoning, if Mrs MacLachlan had been rescued by BA team 2 any earlier, her death might have been avoided.
Margaret Gow
36. Margaret Gow was rescued at about 0506 hours[4053];
37. Professor Purser estimated that her carboxyhaemoglobin level at the time of rescue was between 44% and 53%[4054]
38. When admitted to hospital Margaret Gow was suffering from hypoxic brain damage, a typical effect of exposure to asphyxiant gases[4055];
39. She had significant co-morbidity in the form of left ventricular failure, atrial fibrillation and urinary infection[4056];
40. When rescued Mrs Gow had reached an advanced state in the process of her smoke inhalation injury[4057]. She was found probably just before going into repiratory and cardiac arrest[4058]
41. Rescue with a carboxyhaemoglobin level below 40% would have a potentially better outcome[4059], although because of the co-morbities, and in particular the left ventricular failure, she was still at a higher risk of dying[4060];
42. Her time of rescue, if an immediate call to the Fire Brigade had been made, would have been about 0457 hours ;
43. If she had been rescued at 0458 hours, 8 minutes earlier than she was, then Mrs Gow's carboxyhaemoglobin level would have been about 30.5%. It is possible that she would have survived although not necessarily so[4061].
44. Since earlier rescue would still improve the chances of survival[4062], even with the first fire appliances attending at New Edinburgh Road, Mrs Gow's death might have been avoided if the Fire Brigade had been called immediately (because of the delay of 9 minutes between the sounding of the alarm and the call to the Fire Brigade).
45. By parity of reasoning, it follows that if Mrs Gow had been rescued by BA team any earlier, her death might have been avoided.
Robina Burns
46. Robina Burns was rescued at about 0539 hours[4063].
47. Her time of rescue, if the desiderated precautions had been taken, would have been at about 0525 hours;
48. Mrs Burns' prognosis on arrival at hospital was poor. She had developed a myocardial injury and that created a situation in which there was a very high risk of death[4064].
49. Professor Purser estimated that Mrs Burns' carboxyhaemoglobin level at the time of rescue was between 43% and 49%[4065];
50. Professor Kinsella agreed that the range of 43% to 49% was clinically correct[4066];
51. Rescue of Mrs Burns at an earlier stage would have reduced her exposure and improved her chances of survival, particularly if she could have been rescued before achieving a blood concentration of 40% COHb[4067].
52. Rescue at any time before approximately 55 minutes after ignition (ie. 0523 hours) would have resulted in a % COHb level below 40%[4068],
53. Since a rescue time of 0525 hours lies only two minutes outwith Professor Purser's estimate of when she could have been rescued with a %COHb level below 40% there is a possibility that Mrs Burns' death could have been avoided by rescue at that time.
54. As a result of conditions in corridor 4, rescue before about 45 minutes (ie. O513 hours) would have resulted in a significant increase in exposure to harmful products of combustion. This would not, however, result in a blood level exceeding 40COHb provided the corridor exposure did not exceed 3 minutes[4069].
55. It took about one 1 minute to convey Mrs Burns from her room to the foyer[4070].
Isabella MacLeod
56. Isabella MacLeod was rescued by BA team 1 (of E031) at about 0509 hours[4071];
57. Her time of rescue, if an immediate call to the Fire Brigade had been made, and E031 had attended at Rosepark Avenue, would have been at about 0455 hours;
58. Professor Purser estimated that Mrs MacLeod's %COHb at the time of rescue was between 43% and 57%[4072]
59. Isabella MacLeod was intubated at the scene and therefore received a much more efficient intake of oxygen[4073]. She had a cardiac arrest, probably shortly before she was rescued[4074]. Accordingly, in Professor Kinsella's opinion, the true level was likely to be at the upper end of her % COHb range[4075].
60. Rescue of Mrs MacLeod at an earlier stage would have reduced her exposure and improved her chances of survival, particularly if she could have been rescued before achieving a blood concentration of 40% COHb[4076].
61. For that to have occurred Mrs MacLeod would need to have been rescued by, at the latest, 0503 hours (or 6 minutes earlier than her actual time of rescue), assuming a period of no more than 2 minutes spent in corridor 4[4077]
62. The desiderated rescue time falls 8 minutes before 0503 hours, and before Professor Purser estimated that Mrs MacLeod's bedroom door was likely to have been penetrated (at about 35 minutes after ignition, or 0503 hours)[4078]. In that situation, even allowing for the fact that Professor Kinsella was of the opinion that Mrs MacLeod's % COHb was probably nearer the upper end of the range offered by Professor Purser, it is possible that Mrs Macleod's death would have been avoided by earlier rescue.
63. In view of Professor Kinsella's opinion concerning the likely point in the range of Mrs MacLeod's %COHb, however, it is unsafe to conclude on the evidence that a saving of only 9 minutes would have resulted in a successful outcome.
Response to SF&R in relation to para. 2 of the proposed determination
64. Professor Kinsella gave evidence about the effects on human health of exposure to products of combustion. As set out in paragraph 26 it was Professor Purser who estimated the percentage carboxyhaemoglobin levels of residents in corridors 3 and 4 at the time of rescue, and the times when earlier rescue might have made a difference (in the sense of survival being a real or lively possibility).
65. It is agreed that the basis for saying that the deaths of the four individuals might have been avoided is derived from calculations undertaken on the carboxyhaemoglobin levels, and that the carboxyhaemoglobin level is a function of time exposure and exposure dose[4079].
66. It is, however, disputed that the calculations by Professor Purser leave out of account the consequence that earlier rescue would resulted in the individuals concerned being introduced into a toxic atmosphere. In relation to Margaret Gow and Isabella MacLachlan, the point is made that they were rescued from rooms whose doors were already open to the toxic atmosphere[4080]. Given that these two residents were rescued from within corridor 3 there is nothing in the evidence to indicate that there was any appreciable delay experienced in evacuating either resident along corridor 3. In respect of Isabella MacLeod and Robina Burns Professor Purser's calculations took account of their exposure to toxic gases during rescue. He prepared, and gave evidence in support of, a supplementary report[4081] which considered the implications of earlier rescue where conditions in the upper corridor were concerned[4082]. In support of this determination the Crown led evidence under reference to Professor Purser's supplementary report.
67. The Crown agrees that the evidence indicated that, even with all the information available, firefighters face a dilemma in the case of persons with closed doors. That said, there is no evidence that that was a dilemma which in any way affected the manner in which the fire and rescue operation unfolded. Decisions were taken by officers to evacuate residents from their rooms to the Rose Lounge for treatment. In the circumstances of the Rosepark fire such decisions cannot, on any view, be criticised[4083].
Further response to further adjusted submissions by SF&R intimated on 16 February 2011
68. It is acknowledged that the evidence does not disclose a specific estimate of time for the evacuation of Isabella MacLeod. However, the evidence does disclose that she was removed from room 11 without significant delay. Mr Mackie spoke to locating a weak pulse and confirming to Mr Mackie that she should be evacuated[4084]. Mr Mackie's BA set became entangled in ducting and Mr Buick was on hand to release him[4085]. According to Mr Buick that exercise "never took too long". A flavour of the degree of urgency with which this rescue was undertaken is given by Mr Buick's description of hearing a member of BA team 1 shouting that Mrs MacLeod should be got out[4086]. When it came to rescuing Mrs Burns the evidence of Mr Hector was that it took only one minute to evacuate her along the corridors[4087].
69. By the time Mrs Burns was rescued windows in the rooms in both corridor 3 and corridor 4 had been opened in order to ventilate the building[4088].
70. CO concentrations in corridor 4 applied by Professor Purser took into account modified firefighter entry times into that corridor to reflect the circumstances at Rosepark[4089].
71. It is submitted that Professor Purser's calculations remain sufficiently robust to justify the proposed determination under section 6(1)(c).
CHAPTER 44(6) (formerly 38(6)): A SUITABLE AND SUFFICIENT RISK ASSESSMENT
The Crown proposes the following determinations:
1. It would have been a reasonable precaution for the management of Rosepark to have undertaken a suitable and sufficient fire risk assessment.
2. Had this precaution been taken the accident and some or all of the deaths might have been avoided.
The former determination is addressed in paragraphs 1 to 6 below, the latter in paragraphs 7 to 15.
It would have been a reasonable precaution for the management of Rosepark to have undertaken a suitable and sufficient fire risk assessment.
1. A suitable and sufficient fire risk assessment was a statutory requirement.
2. Fire Safety: An Employer's Guide provided detailed guidance about carrying out a fire risk assessment. Although not directed specifically at a care home setting, that guidance would direct someone who had a care home setting in mind to the key issues which had to be addressed. It also identified, in the Bibliography, the sector-specific guidance in HTM 84.
The management of Rosepark had not undertaken a suitable and sufficient fire risk assessment
General
1. The Home undertook risk assessments for various specific matters. For example, a moving and handling assessment was carried out in relation to each resident[4090]. Likewise, if a particular issue arose which required to be risk assessed - e.g. an employee expecting a baby - that would be undertaken[4091]. These individual measures did not meet the requirement for a systematic assessment of the risks attendant on the workplace. A fortiori, they did not address the question of fire risk.
2. When asked whether he had done anything in terms of making a suitable and sufficient risk assessment of the sort described in regulation 3 of the 1992 Regulations before January 2004, Thomas Balmer replied "Personally not, erm, any input requirement for any risk assessment would fall onto the remit of the Care Manager and if it applied, in any shape or form to ourselves, it would immediately be raised to myself"[4092]. When asked whether he had himself ever engaged in any exercise of looking for potential hazards, deciding who may harmed, evaluating the risks, recording his findings and reviewing the assessment, the only example which Mr. Balmer could recall was an exercise in relation to the loading of residents for outings of residents[4093].
3. The only concrete step taken by the management of Rosepark Care Home to carry out a risk assessment (including a fire risk assessment) was the engagement of Mr. Reid[4094].
Pro 216 was not a suitable and sufficient risk assessment
4. As Mr. Reid acknowledged, Pro 216 was not a suitable and sufficient fire risk assessment[4095].
a. The critical failing was a failure to identify the residents of the Home as persons at risk in the event of fire, or address the implications of that factor[4096]. As Mr. Todd put it, "you almost don't need to go any further. It's failed at that - so catastrophicalliy - at that first stage, that everything else probably pales a little bit into insignificance"[4097].
b. The other serious deficiency was the limited attention paid to the means of escape, the protection of the means of escape, and the arrangements for evacuation. This too would have been enough to mean that Pro 216 was not a suitable and sufficient risk assessment[4098].
c. There were other failings:-
i. It did not contain a systematic or organized assessment of fire risks[4099].
ii. Although certain possible sources of ignition were addressed it did not contain an organized or systematic examination of potential sources of ignition, and did not mention, for example, willful fire-raising[4100].
iii. Critically, it did not It did not address the worst-case scenario of a fire breaking out at night[4101].
iv. It did not address systematically the fire protection measures. It did not address the presence of automatic fire detection[4102].
v. Any fire risk assessment for a care home should consider the arrangements for summoning the Fire Service[4103].
vi. It should have addressed the instructions given to staff in respect of emergency fire-fighting[4104].
5. Mr. Todd questioned whether the document could really be described as a fire risk assessment at all. He described it as "a housekeeping and maintenance audit", of a sort which duty-holders should be carrying out regularly, but which could not properly be characterized as a fire risk assessment[4105].
6. While the use of a pro forma, involving questions capable of being answered only "Yes" or "No", does not necessarily preclude the assessment being suitable and sufficient, but this depends on the scope of the questions and whether it enables or allows additional information to be recorded as required[4106]. In the present case:
a. The use of a template which is generic and not focused on the particular type of workplace in question may make it more difficult to address the key issues[4107].
b. It did not allow for partial compliance[4108]. So, for example, Question F18 (about keeping internal fire doors closed) was badly worded for the situation where the fire doors were held open[4109].
c. It did not allow space for a narrative (e.g. describing existing controls such as the Emergency Plan)[4110].
Had a suitable and sufficient risk assessment been undertaken the deaths, or some of them, would have been avoided
Discussion with care professionals
7. In the context of a care home, the particular challenge, from the point of view of managing fire safety, is the dependence of the residents. The greater the dependency, the greater the problem[4111]. The challenge presented by evacuating dependent residents should be obvious to a risk assessor[4112].
8. A key step in a fire risk assessment of a Care Home should, accordingly be to discuss the nature of the residents and their dependence with the care professionals to identify whether there were systems in place to achieve evacuation in the event of a fire[4113]. Such a discussion should include a discussion about the time which it would take to evacuate residents from any sub-compartment. The risk assessor should seek to identify the worst case scenario - i.e. the sub-compartment which it would take longest to evacuate. A risk assessor cannot, without input from the care professionals, obtain a proper understanding of these matters.
9. The risk assessor should get a handle on the potential time to evacuate in the worst case scenario (i.e. on nightshift), if necessary by getting staff to undertake a practical exercise[4114]. Even without undertaking a detailed analysis such as that undertaken by Ms Midda, such a conversation with Ms Meaney would have disclosed her anxieties about what would happen in the event of a fire at night. As Mr. Todd observed, simply to say that it would all be very difficult is not good enough[4115].
10. Once the sorts of timescales involved in evacuation had been identified, the risk assessor would need to address whether the escape route would be available for that length of time. This should take the risk assessor to consideration of protection of the escape routes and would lead him to address the question of keeping bedroom doors closed, and to consider upgrading them to fire doors and to fit smoke seals[4116], as well as the question of the cupboard doors[4117]. It would also take him to address the number of residents in the subcompartment, and the subdivision of the subcompartment which would not only reduce the number of residents to be evacuated in the first instance, but also reduce the time by reducing the size of the subcompartment[4118].
What would a suitable and sufficient risk assessment have identified?
11. Had a suitable and sufficient risk assessment been undertaken by the management of Rosepark before the fire it would have identified the following:
a. The size of corridor 4. A suitable and sufficient risk assessment undertaken in January 2003 (or indeed at any earlier time during the life of Rosepark) would have identified that corridor 4 was too long and that the number of persons potentially accommodated in that corridor - 14 - were too many for an effective evacuation[4119]. The basis of fire safety is addressing the question: can we get people out in time before conditions become untenable[4120]? So the issue would have been fundamental. The fire safety expert should ask the care staff: How many staff are on at night? Tell me about the residents and their evacuation difficulties? How long is it going to take to evacuate residents from a sub-compartment? Such an exercise would have disclosed that the time which it would take to evacuate corridor 4 were too long - and that the difficulties in doing so were too great. The issue was so important that it would be given a high priority in any Action Plan: assuming that the outcome was a decision to subdivide the corridor, Mr. Todd would have put a timescale of 3 months on undertaking that work[4121].
b. Whether bedroom doors would be closed in the event of a fire and how that would be achieved. A suitable and sufficient fire risk assessment would have addressed the question of whether bedroom doors would be closed in the event of fire and how that would be achieved[4122]. A fire risk assessor, recognizing the reasons why the Care Home required to leave certain doors open or ajar, would then have addressed how the fire safety requirement to have the doors closed in the event of a fire would be achieved, and would, in that context, have recommended the use of one of the technological devices where were available. The first choice would have been swing-free devices. An acceptable alternative would have been Dorgard devices, which would have advantages in terms of cost and speed of installation. In an Action Plan, this would be given a very high degree of priority[4123].
c. The presence of an electrical distribution board in cupboard A2. The average risk assessor would not walk past cupboard A2 without looking inside it: as a cupboard opening onto a critical escape route he would wish to know what was inside it[4124]. On identifying that the cupboard contained electrical equipment (which could be source of ignition) and other flammable contents, he would assess that as part of the risk assessment. Mr. Todd would not have insisted in complete separation between the distribution board and the other contents of the cupboard, although he would have wished to see the shelves cut back to make a clear separation between combustible materials and the board. He would have been concerned to find a quantity of aerosols within the cupboard (even if they were within the inner cupboard), and would have recommended that these be stored elsewhere. He would in any event (and whether or not he identified aerosols within the cupboard) have recommended that the doors be kept locked and that they should preferably be fire-resisting, with keeping them locked being the primary thing. The recommendations to remove the aerosols and to keep the cupboard doors locked would have been given a high priority, and the recommendation to upgrade the doors to fire-resisting doors a timescale of 6-12 months[4125].
d. Inadequate arrangements for summoning the fire brigade. The risk assessor should discuss the Emergency Plan with management and staff. A suitable and sufficient fire risk assessment would have addressed the arrangements for contacting the fire and rescue service. If there was any doubt as to whether the Fire Service would be reliably summoned immediately at night, a recommendation to install automatic transmission to the Fire Service would have been appropriate[4126]. This exercise would have identified that the Home had adopted an inappropriate procedure which involved a delay in contacting the fire service until a fire had been identified and generated a recommendation that this procedure should be changed with a high degree of priority. Since the introduction of such a procedure would involve a culture change, and this would introduce concern as to whether or not this could be reliably implemented, a recommendation to consider automatic transmission would be appropriate[4127].
e. Absence of fire dampers. In the context of Rosepark, where there were ventilation grilles in the ceilings of the corridors on either side of the sub-compartments, a competent fire risk assessor would appreciate that there was likely to be a common duct, and that this should be protected by fire dampers, and should satisfy himself by making inquiry about the fire protection at the barrier. If he received no immediate answer, it might be included in an Action Plan to be considered[4128].
12. The absence of a zone plan at the fire panel. Colin Todd took the view that a good fire risk assessor would pick up the absence of a zone plan, but acknowledged that not every fire risk assessor would identify this failing[4129].
13. A competent risk assessor experienced in fire safety, addressing the position at Rosepark, would have recommended[4130]:
a. sub-division of corridor 4 within a short period of months (or, if management were not prepared to take that step, alternative measures - such as the introduction of a sprinkler system, or increasing the staff complement, to secure the same end);
b. installation of self-closers (swing-free, Dorgard or other similar devices) on bedroom doors as a matter of urgency;
c. keeping the doors to cupboard A2 locked as a matter of urgency;
d. removal of the aerosols from cupboard A2 as a matter of urgency;
e. upgrading the bedroom doors to fire resisting self-closing doors fitted with smoke seals and the cupboard doors to be fire-resisting doors within twelve months;
f. that the Fire Brigade should be called on the operation of the alarm[4131].
14. Such a risk assessor should also
a. have emphasized the need for clearance between the contents of cupboard A2 and the distribution board[4132]; and
b. have identified, at least as an issue for inquiry, the requirement for fire dampers[4133]; and
c. recommended periodic inspection and testing of the fixed electrical installation in accordance with BS 7671[4134].
15. It follows that, had a suitable and sufficient fire risk assessment been undertaken, many of the reasonable precautions already mentioned would have been identified and, on the basis that the recommendations generated by the process would have been acted upon, this might have avoided the fire and some or all of the deaths.
CHAPTER 44(7) (Formerly 38(7)) - EARLY AND SUFFICIENT RESOURCING OF THE INCIDENT BY THE FIRE BRIGADE
Proposed determination
1. The following would have been reasonable precautions:-
1.1 For Station Officer Campbell to have examined the fire alarm panel and zone card in order to verify the information he had obtained from staff about the possible whereabouts of the fire[4135];
1.2 For Station Officer Campbell to have treated the residents of the upper level bedrooms beyond corridor 2 as unaccounted for, until the position was established otherwise[4136].
1.3 For Station Officer Campbell to have confirmed with the staff of Rosepark whether the doors to the bedrooms beyond corridor 2 were open or closed[4137];
1.4 For Station Officer Campbell to have instructed the message Make Pumps 6 at 0450 hours when the persons reported message was sent[4138];
1.5 For Station Officer Campbell to have instructed the message Make Pumps 6 at 0450 hours even if the information gleaned from the fire alarm panel was unclear[4139].
2 Had these precautions been taken, they might have avoided the death of Robina Burns.
This determination is proposed on the basis that the call from Rosepark to the Fire Brigade was made 9 minutes after the fire alarm sounded, and the initial attendance of fire appliances was to New Edinburgh Road.
Comment
1. Right from the outset an Incident Commander requires to have in his mind the level of resources at his disposal in order to deal with an incident[4140].
Fire Alarm Panel
2. Station Officer Campbell did not check the fire alarm panel after he arrived at Rosepark. He was, however, given the zone number (3) that had illuminated at the time when the fire alarm had gone off[4141].
3. It would have been very relevant to Mr Campbell's consideration of resourcing the incident adequately for him to have known the location of zone 3[4142].
4. Station Officer Campbell should have gone to the fire panel and checked the location of zone 3[4143].
5. Station Officer Campbell should, in any event, have looked at the fire panel. It should have been second nature for an incident commander to do so[4144] Depending on what zone or zones were then illuminated, it would have told him, as Incident Commander, at least if there was smoke logging beyond where smoke was known to be[4145].
6. Since the evidence of Miss Queen and Mrs Richmond was to the effect that zone 2 illuminated after Miss Queen attempted to silence the alarm, it is probable that an examination of the fire panel and zone card would have revealed to Station Officer Campbell (with his good understanding of the layout of the upper floor[4146]) that the fire, or at least its effects, were not confined to the area of the lift.
7. Section 3.2.1. of Operational Technical Note No. A124, now provides that in all instances where fire is suspected or when responding to an alarm actuation the alarm panel must be consulted to establish the zones involved within the building[4147]. Checking the fire panel and associated zone card may be seen to have been a reasonable precaution to have taken.
Assumptions about the integrity of the upper floor
8. There was no basis for Station Officer Campbell to assume, when he went to the lift and saw for himself the smoke logging, that there was a fire somewhere in the lift enclosure and that the fire and products of combustion were contained within that protected area. It was inappropriate to have made that assumption[4148], especially as Mr Campbell had not examined the fire alarm panel or verified the location of zone 3[4149].
9. Nor was it a reasonable hypothesis that the fire was somewhere in the lift shaft area, absent any obvious signs of heat and flame[4150]. Very little smoke tends to generate from a lift fire[4151]. As to the whereabouts of the seat of the fire the only evidence Station Officer Campbell had was that the lift shaft was smoke logged. That was not sufficient to warrant the assumption that the fire was in the lift shaft[4152]
10. Nor was it reasonable for Station Officer Campbell to think that the priority was to investigate what was happening on the lower level; there should have been a concern for the residents who were unaccounted for at both levels[4153]
11. As regards the appropriateness of making assumptions about conditions beyond corridor 2, an officer in Station Officer Campbell's position should always assume the worst. If smoke logging had been discovered in the lift shaft, but the seat of the fire was not known to be there, then (i) the assumption should be that there were going to be difficult conditions in corridor 3, and (ii) that further resources should be requested[4154].
Assumptions about position of bedroom doors
12. While it was not unreasonable, as a starting point, for Station Officer Campbell to assume that the doors to the bedrooms beyond corridor 2 were closed, that assumption ought to have been tested by Mr Campbell immediately asking the staff if such was the case. The answer to that question was key to the decision, which Mr Campbell had to take, as to the number of appliances and personnel which were required to deal with the incident[4155].
13. The question was, therefore, not just a reasonable one to ask; it was essential to have done so, and one which incident commanders generally would be expected to ask[4156]. For the reasons explained in chapter 44(3)(b) had all the bedroom doors been closed all of the deaths might have been avoided. Conversely, the potential for survival of those residents who died was clearly compromised by bedroom doors being open, and this merited the deployment of additional BA resources to the affected corridors with the minimum of delay.
14. It is not sufficient to rely on staff providing information about the status of the bedroom doors, or to take any comfort from the demeanour of staff or their ability to provide relevant information to the incident commander [4157].
Resourcing of the Incident
15. In evidence to the Inquiry Sir Graham Meldrum was critical of Station Officer Campbell's failure to call for additional resources at the time when the "persons reported" message was instructed.
16. In Sir Graham's opinion 0450 hours was a vital time in respect of command and control of the incident. It would have been reasonable to have asked for a further four appliances. This would have resulted in the attendance being increased to a total of thirty personnel[4158].
17. Sir Graham's opinion, originally expressed in the report, production 1408, was not altered by reading Station Officer Campbell's summary of the information he had available to him at the time the message was instructed[4159].
18. Having regard to Station Officer Campbell's state of knowledge at the time, as expressed by him in evidence[4160], Sir Graham could not endorse his view that to have made Pumps 6 at 0450 hours would have been a knee jerk reaction. Mr Campbell had said that he was quite satisfied that the smoke was contained in the lift enclosure, he had no reason to think otherwise (corridor 1 being virtually smoke free), and that the information he had obtained led him to believe that there was a fire situation at the lower level[4161].
19. Sir Graham's criticism of the failure to seek additional resources at the time when the "persons reported" message was instructed may be summarised in this way:
(i) At the time of the message Mr Campbell had not established the whereabouts of the seat of the fire[4162];
(ii) That being the position Mr Campbell ought to have proceeded on the basis that all of the residents on the ground floor beyond corridor 2 were unaccounted for[4163];
(iii) It was not appropriate to make any assumptions about the fire integrity of the building, and in particular, about the absence of smoke spread to corridor 3, when the seat of the fire was still not known[4164];
(iv) In any event, Mr Campbell had not verified, by reference to the zone card, the information provided to him which led him to conclude that there was a fire at the lower ground floor level[4165];
(v) Mr Campbell had not verified the position regarding the bedroom doors beyond corridor 2; had he done so the answer would immediately have led to the conclusion that additional resources were required[4166], and
(vi) There were members of staff and residents on the lower ground floor from whom there had been no contact; it should have been assumed that they were in a potentially difficult situation[4167].
20 In that situation the professional course of action would have been to call for more resources at the same time as making "persons reported"[4168].
21 An additional four appliances would have been reasonable and appropriate because (i) almost all of the crews of the initial attendance were deployed at the outset; (ii) the seat of the fire had still not been located; (iii) it was still possible that the incident involved a fairly major fire; (iv) it would have been reasonable to assume that the incident would involve a fairly protracted BA operation, requiring up to 4 additional BA crews; (v) resources would be needed to deal with fire fighting operations (including supply of water, laying out of hoses, protecting the unaffected parts of the building, and the provision of emergency cover for BA teams; (vi) the establishment of stage 2 BA procedure would be required to deal with that level of additional resources, and (vii) personnel would be needed to assist with the demanding task of evacuation of vulnerable residents[4169].
22 The fact that the seat of the seat of the fire had not been located when Mr Campbell instructed the message Make Pumps 3 supported Sir Graham's opinion that there should have been call for resources at 0450 hours[4170].
23 To the extent that Station Officer Campbell was unaware of how long it would take for additional resources to arrive at the incident[4171], it was all the more important to summon assistance as quickly as possible; that meant at 0450 hours[4172].
24 The under-resourcing of the incident was, in the opinion of Sir Graham Meldrum, illustrated by the (i) evidence that BA teams 1 and 2 and, to a lesser extent, 3 and 4, had to work to their limits in respect of fatigue, exhaustion and air supplies, and (ii) the inability of Station Officer Campbell to command the existence of a BA Emergency Team[4173].
25 The fact that there were firefighters in the Rose Lounge administering first aid, and who could be deployed in BA, was not an acceptable solution to the absence of an Emergency Team. The Emergency Team had to be capable of being deployed immediately[4174].
26 There was no evidence that Station Officer Campbell was under any pressure not to call out additional appliances. Indeed the contrary was stated by both Jeff Ord and Brian Sweeney[4175].
27 Section 4 of Operational Technical Note No. A124 now provides that early consideration should be given to the scale of the incident and the resources that will be required in particular where a large scale evacuation/rescue of non-ambulant residents may be required[4176]
Proposed Determination:-
Had these precautions been taken, they might have avoided the death of Robina Burns.
1. Had Station Officer Campbell been aware from a consideration of the fire alarm panel and zone card that the fire, or at least its products, may not have been confined to the area of the lift, it is reasonable to conclude that that knowledge would have caused him to call for additional resources. That, after all, is what he did when he became aware that there was smoke in corridor 3[4177]. By his own admission knowledge that smoke had penetrated to other parts of the building may have caused him to consider calling for additional resources[4178]
2. By the same token, if Station Officer Campbell had become aware that the fire, or at least its products, may not have been confined to the lift area, there would be no justification for the position adopted by him in evidence that knowledge that bedroom doors beyond corridor 2 were open would not have changed his approach to seeking additional resources[4179].
3. Had Station Officer Campbell instructed a message to make Pumps 6 at about 0450 hours then the appliances which subsequently answered the resource messages to make Pumps 3 and make Pumps 4 would have been available to Mr Campbell sooner than in fact they were.
4. In the opinion of Sir Graham Meldrum, the effect of a make Pumps 6 message at 0450 hours would have been this. EO11, which mobilised in response to the make Pumps 3 message at 0456, would have been mobilised 6 minutes earlier[4180]. Given that there is a slight delay in mobilisation after the resourcing message has been sent it is probably appropriate to reduce that period of time to 5 minutes, being the difference between the time of the person reported message and the time of the make Pumps 3 message.
5. By a similar process of reasoning one can bring forward the times of attendance of E042, E041 and E022 by a period of time representing the delay between 0450 hours (when, in Sir Graham's opinion, they should have been summoned) and the make Pumps 4 and make Pumps 6 messages[4181].
6. Since E042, E041 and E022 were all crewed with a BA team[4182] one can reasonably conclude that Station Officer Campbell would have had a BA team from E042 at 0509 hours (0450 being 16 minutes before 0506). He would have had a BA team from each of E041 and E022 at 0502 hours (0450 hours being 35 minutes before 0525 hours).
7. The consequence of having such additional resources would be to enable Station Officer Campbell to deploy additional teams on search and rescue. It was apparent that the existing resources were overstretched[4183].
8. Station Officer Campbell's evidence about how he would have deployed additional BA teams, had they been available, was not altogether clear. He may have deployed them along the upper level if the message from BA team 1 was that the lower level was not an area of concern[4184].
9. Even if that deployment had occurred it is reasonable to infer from the events of the night that Mrs Burns could have been rescued sooner than she was. Mrs Burns was rescued about 30 minutes after her next door neighbour. There was a practical problem in relation to resourcing as BA wearers gathered in the vicinity of room 9[4185] .
10. Station Officer Campbell acknowledged the possibility that Mrs Burns could have been rescued earlier if he had had additional resources[4186]
11. The rescue time for Isabella MacLachlan (0455 hours) would not have been affected by a make Pumps 6 message at 0450 hours.
12. In relation to the outcomes for Margaret Gow, Isabella MacLeod and Robina Burns, reference is made to the discussion of the evidence of Professor Kinsella and Professor Purser in chapter 44(5)
Outcomes of earlier rescue of those rescued alive from corridors 3 and 4
Margaret Gow
13. Margaret Gow was rescued at about 0506 hours[4187];
14. Professor Purser estimated that her carboxyhaemoglobin level at the time of rescue was between 44% and 53%[4188]
15. When admitted to hospital Margaret Gow was suffering from hypoxic brain damage, a typical effect of exposure to asphyxiant gases[4189];
16. She had significant co-morbidity in the form of left ventricular failure, atrial fibrillation and urinary infection[4190];
17. When rescued Mrs Gow had reached an advanced state in the process of her smoke inhalation injury[4191]. She was found probably just before going into respiratory and cardiac arrest[4192]
18. Rescue with a carboxyhaemoglobin level below 40% would have a potentially better outcome[4193], although because of the co-morbities, and in particular the left ventricular failure, she was still at a higher risk of dying[4194];
19. If she had been rescued at 0458 hours, 8 minutes earlier than she was, then Mrs Gow's carboxyhaemoglobin level would have been about 30.5%. It is possible that she would have survived but not necessarily so[4195].
20. Additional resources responding to the message to make Pumps 6 would not have been available before 0502 hours and would require a short period of time to deploy. In the circumstances it cannot reasonably be said that Mrs Gow's death might have been avoided if additional resources had been sought at 0450 hours.
Isabella MacLeod
21. Isabella MacLeod was rescued at about 0509 hours[4196];
22. Professor Purser estimated that Mrs MacLeod's %COHb at the time of rescue was between 43% and 57%[4197]
23. Isabella MacLeod was intubated at the scene and therefore received a much more efficient intake of oxygen[4198]. She had a cardiac arrest, probably shortly before she was rescued[4199]. Accordingly, in Professor Kinsella's opinion, the true level was likely to be at the upper end of her % COHb range[4200].
24. Rescue of Mrs MacLeod at an earlier stage would have reduced her exposure and improved her chances of survival, particularly if she could have been rescued before achieving a blood concentration of 40% COHb[4201].
25. For that to have occurred Mrs MacLeod would need to have been rescued by, at the latest, 0503 hours, assuming a period of no more than 2 minutes spent in corridor 4[4202].
26. Additional resources responding to the message to make Pumps 6 would not have been available before 0502 hours and would have required a short period of time to deploy. In the circumstances it cannot reasonably be said that Mrs MacLeod's death might have been avoided if additional resources were sought at 0450 hours.
Robina Burns
27. Robina Burns was rescued at about 0539 hours[4203].
28. Mrs Burns' prognosis on arrival at hospital was poor. She had developed a myocardial injury and that created a situation in which there was a very high risk of death[4204].
29. Professor Purser estimated that Mrs Burns' carboxyhaemoglobin level at the time of rescue was between 43% and 49%[4205];
30. Professor Kinsella agreed that the range of 43% to 49% was clinically correct[4206];
31. Rescue of Mrs Burns at an earlier stage would have reduced her exposure and improved her chances of survival, particularly if she could have been rescued before achieving a blood concentration of 40% COHb[4207].
32. Rescue at any time before approximately 55 minutes after ignition (ie. 0523 hours) would have resulted in a % COHb level below 40%[4208],
33. As a result of conditions in corridor 4, rescue before about 45 minutes (ie. O513 hours) would have resulted in a significant increase in exposure to harmful products of combustion. This would not, however, result in a blood level exceeding 40COHb provided the corridor exposure did not exceed 3 minutes[4209]. For the avoidance of doubt, Professor Purser's calculations took account of Mrs Burns' exposure to toxic gases during rescue. He prepared, and gave evidence in support of, a supplementary report[4210] which considered the implications of earlier rescue where conditions in the upper corridor were concerned[4211]. In support of this determination the Crown led evidence under reference to Professor Purser's supplementary report.
34. It took about one 1 minute to convey Mrs Burns from her room to the foyer[4212].
35. If two additional BA teams had been available from 0502 hours, and a further BA team from 0509 hours, Sir Graham acknowledged the possibility that Mrs Burns' room might still have been missed because the search pattern adopted hitherto had not followed a strict left and right hand search[4213].
36. However, if one were to proceed on the assumption that the addition of significant additional resources would have been deployed sensibly by Station Officer Campbell it is reasonable to conclude that Mrs Burns could have been rescued prior to 0523 hours. If that had occurred, her death might have been avoided.
Response to Submissions of Strathclyde Fire and Rescue
1. In relation to the proper approach to be taken to the assessment of whether the reasonable precautions desiderated (or any of them) ought to have been taken, it is submitted that it is unhelpful to place undue reliance on cases concerned only with common law fault. Reference is made to the Determination of Sheriff Reith Q.C. in relation to the Death of Sharman Weir, 23 January 2003, referred to in chapter 1, paragraph 6.3.
2. While the reasonableness of any precaution may not be dependent on foreseeability it does not follow that issues of foreseeability of risk cannot advise the suitability of a particular precaution. An Inquiry will look back to determine what can be seen as the reasonable precautions, if any, whereby a death might have been avoided. It is nevertheless open to such an Inquiry to consider what precautions would have been reasonable in light of the circumstances known to particular individuals at particular times.
3. On page 4 of the submissions for SF&R it is stated that "the first three proposed determinations....would inevitably involve the expenditure of some additional time in the course of the "sizing up" operation undertaken by Station Officer Campbell". It is not disputed that this is so. It is questionable, however, whether much time would be necessary, for the reasons explained by Sir Graham Meldrum[4214]
4. On page 5 of the submissions for SF&R it is stated that "...the very low incidence of serious fires [in Care Homes] coupled with the fact that there had been no previous multiple fatality incident in a Care Home would be yet another factor to be taken into account by the Officer in Charge". It is not clear from the evidence whether this was in fact a factor which advised the operational approach to the fire at Rosepark.
5. It is agreed that a combination of factors made the fire at Rosepark a difficult fire to manage. Sir Graham Meldrum identified four particular factors of relevance, namely (i) the delay caused by staff trying to locate the fire before calling the fire service; (ii) the fire alarm panel having been changed and the staff on duty not being familiar with the new panel; (iii) the custom and practice at Rosepark of permitting residents to have their bedroom doors open at night, and (iv) the postal address of the premises not actually being the main entrance to Rosepark[4215]. It is also agreed that other factors, as set out in page 5 of the submissions of SF&R, section 3, were relevant to how the incident unfolded. For completeness it is observed, in relation to factor o. that the call to the Fire Service made reference to the lift, as opposed to the lift shaft[4216]. It is not, however, accepted that these factors affect the answer to the question whether it would have been a reasonable precaution to have called for additional resources at the time when the "persons reported" was transmitted.
6. Under reference to page 6 of the submissions for SF&R, section 4, it is emphasised that no suggestion of bad faith is made. The Crown has no reason to doubt that there was no improper or inappropriate motive for Mr Campbell to do anything other than carry out his duties properly. It is recognised that public interest considerations of the kind referred to in the submissions of SF&R[4217] may well, in appropriate circumstances, preclude minute examination with the benefit of hindsight of actions taken by members of the emergency services in emergency situations. However, that should not preclude consideration of the actions of the emergency services in relation to incidents to which they are called. As the submissions of SF&R bring out, the fire at Rosepark was a singular event, brought about by a confluence of different acts and omissions. The loss of life itself was very considerable in spite of the relatively short duration of the fire. It is submitted that the public interest is served by an examination in detail of the actions of SF&R in order to assist in a full and proper inquiry into the circumstances of the deaths under reference, in particular, to section 6(1)(c) of the 1976 Act.
7. In relation to the proposed determinations; 1.1. This matter has similarly been dealt with in the context of the narrative in chapter 28[4218]. 1.2 It is important to appreciate that this determination is sought in the context of the seeking of additional resources at 0450 hours, and therefore before the BA teams were committed. 1.3/1.4 Reference is made to the evidence in support of these determinations set out above.
CHAPTER 45
This chapter addresses proposed determinations under section 6(1)(d) of the 1976 Act[4219]. The Crown proposes determinations under the following heads:-
Chapter 45(1): Defective System of Work as regards Maintenance of the Electrical Installation
Chapter 45(2): Defective System of Work as regards fire training and drills
Chapter 45(3): Defective System of Work as regards the management of fire safety
Chapter 45(4): Defective System of Work as regards the management of the construction process
Chapter 45(5): Defective System of Work as regardes the interaction between Rosepark Care Home and the Health Board.
CHAPTER 45(1) (formerly 39(1)): DEFECTIVE SYSTEM OF WORK AS REGARDS MAINTENANCE OF THE ELECTRICAL INSTALLATION
The Crown proposes the following determination:
1. The system of maintenance of the electrical installation at Rosepark was defective.
2. This contributed to the deaths.
1. There was no adequate system of maintenance of the fixed electrical installation at Rosepark before the fire.
1.1. An adequate system of maintenance would have involved: (a) regular visual inspection; and (b) periodic inspection and testing in accordance with the IEE Regulations[4220].
1.2. The only checking which was undertaken was that done by Mr. Ross, which has been described above[4221]. At no time did he inspect and test the electrical installation in accordance with the IEE Regulations.
1.3. Even if Mr. Balmer's evidence that Mr. Ross opened the plastic covers on the distribution boards and tripped circuit breakers[4222] were to be accepted, this would fall well short of inspection and testing to IEE standards.
1.4. The occasional walk-through by Mr. Ross, done without any record being kept, and as a favour[4223], did not amount to such a system.
1.5. It was, in any event wholly, inadequate. Even on Mr. Balmer's description of what Mr. Ross did, what was done did not meet the Home's obligation to maintain the electrical installation. It did not meet the IEE Requirements for periodic inspection and testing.
1.6. In any event, an adequate system of maintenance requires appropriate record-keeping. No records of Mr. Ross' work was kept[4224] - a circumstance which reflects, perhaps, the informality of what was done, and its limited nature as compared with what would have been required of an adequate system of inspection of the fixed electrical installation.
1.7. The approach of Mr. Balmer, who, for these purposes was the responsible person in the management of Rosepark, to the issue of maintenance of the electrical system, is illustrated by:
1.7.1. His apparent willingness, if his evidence were to be believed, to base the approach to this matter on a casual conversation with an unknown workman and his understanding of what that implied[4225].
1.7.2. The arrangement which he made with Mr. Ross, and the documentation which he produced in that regard, which presented a misleading impression of the arrangements in place at the home in respect of the maintenance and inspection of the fixed electrical installation[4226].
2. The defects in the system of maintenance of the electrical installation contributed to the deaths. Had there been a proper system of maintenance of the electrical installation, this would have included periodic inspection and testing of the electrical installation in accordance with the IEE Regulations. Had this been undertaken, the inadequate insulation at the back of the distribution board would have been identified[4227]. An adequate system of maintenance of the electrical installation would have identified that defect and would have resulted in its rectification. If that had been done then, on the assumption that the fire was caused in the manner proposed in Chapter 43, the accident which caused the deaths would not have occurred. In that event, all of the deaths would have been avoided.
CHAPTER 45(2) (formerly 39(2)): INADEQUATE FIRE TRAINING AND DRILLS
The Crown proposes the following determination:
1. The system of work in respect of fire safety training and drilling of staff at Rosepark were defective.
2. This contributed to the deaths.
1. The deficiencies in the system of work in respect of fire safety training and drills at Rosepark have been described above: see Chapter 44(4)(B)[4228]. In particular:-
1.1. The induction was inadequate.
1.2. There was no system of refresher training.
1.3. Drills were held haphazardly.
1.4. There was no system for ensuring that all members of staff received regular refresher training and drills at appropriate frequencies.
1.5. The arrangements in respect of nightshift were particularly unsatisfactory.
1.6. The training did not take into account the particular responsibilities which individual members of staff might be called on to undertake.
1.7. The training in the use of fire extinguishers was inadequate.
1.8. Management did not recognise that an important change in the fire safety arrangements - namely the new fire alarm panel - required to be reflected in the instruction of relevant staff.
2. These deficiencies were manifested in the position of each of the staff who was on duty on the nightshift on 31 January 2004[4229].
3. This defective system of working contributed to some or all of the deaths. Had staff been well trained and drilled[4230]:
3.1. Ms Queen would have identified the correct zone.
3.2. Staff would have gone immediately to the correct part of the building and would have undertaken emergency fire fighting. Had they been well-trained in the use of fire-extinguishers, there was sufficient time for it to be likely that they would have been able to extinguish the fire.
3.3. Even if they had not been able to extinguish the fire, they would have closed the cupboard door and the bedroom doors, thereby buying sufficient time for the fire service (which on this hypothesis would have been summoned, even on the inadequate procedure followed at Rosepark) to deal with the fire.
CHAPTER 45(3) (former 39(3)): MANAGEMENT OF FIRE SAFETY
The Crown proposes the following determination:
1. The management of fire safety at Rosepark was systematically and seriously defective.
2. The deficiencies in the management of fire safety at Rosepark contributed to the deaths.
Introduction
1. The specific deficiencies which have been mentioned above[4231], and the reasonable precautions which have been identified[4232], fall to be seen in the context of the management of fire safety at Rosepark as a whole. The arrangements for the management of fire safety were systematically and seriously defective.
Standards
2. The key elements of successful health and safety management are set out in the Approved Code of Practice and Guidance on the Management of Health and Safety at Work Regulations[4233] and outlined in the HSE publication, Successful Health and Safety Management[4234].
3. The general process of health and safety management is applicable to successful fire safety management both generally and in the particular context of a care home[4235].
4. Mr. Sylvester-Evans set out those key elements in diagrammatic form under the following headings[4236]:-
a. Policy - i.e. setting clear policies and objectives
b. Organising - i.e. putting in place a structure and process to implement the policy objectives - which will include defining the roles and responsibilities of relevant staff, and communicating those roles and responsibilities to the staff concerned, as well as assessing the skills, training and competence of staff who have responsibilities to perform.
c. Planning and implementing - which will include identifying, assessing and recording risks, identifying the control measures required in order to address the risks, providing appropriate training to staff, and setting performance standards.
d. Measuring performance - i.e. monitoring, both proactively and reactively.
e. Reviewing performance
f. Auditing the whole process
5. The heading "Planning" includes adopting a systematic approach to risk assessment[4237].
6. Mr. Sylvester-Evans usefully summarized the essential requirements in the following way[4238]:-
"In essence, taking away all the management-speak issues, it's: What do I want to happen and why? How do I make that happen? And the next point is simply implementing it, making it happen. The fourth point is checking that it happens and learning from mistakes and problems that you find ...".
7. He emphasized the need for management to take a proactive approach to the management of fire safety.
8. The process may be illustrated by reference to the specific issue of staff training.
a. Management should consider, having assessed and identified the risks presented by the particular workplace, what the training requirements of its staff are[4239].
b. Management should articulate in writing, the standards which it requires as regards staff training to meet those particular risks[4240].
c. Management should identify the members of staff who are to be responsible for delivering training to management's requirements. Management should ensure that the person to whom these responsibilities are delegated has been adequately trained and has a full understanding of what is required[4241].
d. Management should communicate the required standards to the staff required to implement the training[4242].
e. Management should put in place a system for monitoring proactively whether or not its training requirements are actually being delivered to the standard which management has specified[4243].
f. If that monitoring should disclose a failure to meet the standards required by management, management should take steps to remedy the situation[4244].
Deficiencies in fire safety management at Rosepark
9. Judged by these standards, the fire safety management at Rosepark Care Home was systematically and seriously defective.
Failure to set clear policies and objectives
10. The starting point for effective health and safety management is a clear statement of commitment by management. Leadership is crucial to enabling and sustaining a health culture. With respect to fire safety, management needs to show interest and commitment[4245].
11. Management effectively delegated to Matron the formulation of policy. Pro 259, the Policy Manual, was prepared by the Matrons at Rosepark and Croftbank. Although Thomas Balmer accepted that he had a responsibility to determine the policies of the Home[4246], in practice, he adopted a passive attitude to the preparation of policies by the Matrons of the two homes[4247].
12. The Health and Safety Policy stated:
"We will develop a control system, which is designed to provide speedy recognition and resolution of health and safety problems."
The implication - borne out by the evidence - was that there was in fact no control system in place.
Failures of organization
13. It is essential that roles and responsibilities be clearly allocated. Management must make clear to relevant members of staff "this is what I expect you to do, and we'll be monitoring that you do that". And, once roles have been clearly identified, staff with particular responsiblities should be trained to equip them to fulfil those responsibilities.
14. Key failures here were these[4248]:
a. Management did not have a proper appreciation of its role and responsibility in relation to issues of fire safety[4249].
b. The respective roles of Matron and management were not clearly defined[4250].
c. Inasmuch as management left it to Matron to deal with issues of fire safety, she was not equipped by training or otherwise, to undertake that role.
d. Management allowed a situation to develop in which, in effect, Mr. Clark became the person to whom staff (including nurses in charge) turned for guidance in relation to matters concerning fire safety. He was wholly unqualified for that role.
e. Nurses in charge, particularly on the nightshift, had a particular responsibility which was not recognized by management, was not reflected in training, and which Ms Queen appears not to have appreciated herself[4251].
f. All staff might have to engage in emergency fire fighting. Although this was identified in the Policy Manual[4252], staff were not given the training to equip them to do this effectively[4253].
Management
15. Although Mr. Balmer accepted ultimate responsibility for fire safety at Rosepark, management did not properly appreciate its responsibilities in that regard. A particular illustration of the blindness of management to its responsibilites in respect of fire safety is the issue of bedroom doors being left open. Management understood that leaving a bedroom door open involved a compromise of fire safety, yet took the view:
a. That this was essentially a nursing matter; and
b. That a resident, in effect, had a right to have his or her bedroom door left open.
16. A decision to leave one resident's bedroom door open involved a compromise of fire safety.
a. There was accordingly a potential conflict between the desire of one resident to have his or her bedroom door left open and the right of all residents to be kept safe in the event of fire.
b. There was also a potential conflict between nursing and medical needs on the one hand, and fire safety on the other.
17. It was the responsibility of management to address these potential conflicts and, having addressed the risks and their minimization: (a) to determine what the policy of the Home should be in this regard; (b) to articulate that policy; (c) to communicate that policy to staff; and (d) to monitor whether or not staff were implementing that policy. Management did none of these things.
The respective roles of management and Matron were not clearly defined
18. The lack of clarity in respect of Matron's role has been discussed above. Inasmuch as Inasmuch as management left it to Matron to deal with issues of fire safety, she was not equipped by training or otherwise, to undertake that role. The management of a care home is not entitled to assume that even an experienced Matron is qualified and competent to deal with fire safety[4254].
Mr. Clark
19. Mr. Clark's formal role was in relation to testing the fire alarm system. Yet he came to be seen as a source of authoritative guidance on matters to do with the fire alarm system.
Nurse in charge on nightshift
20. Although management had identified that the nurse in charge had a responsibility to take the lead and to give instructions to other staff if the fire alarm sounded, management had not carried that through, by for example, addressing and articulating the additional requirements required for the training of such staff.
21. The December 2003 false alarms illustrated that nurses in charge on the nightshift were uncertain as to what they should do, in a situation potentially of serious danger.
22. Ms Queen had an inadequate appreciation of her role as nurse in charge. She appears to have believed that deciding how to respond to the emergency was a collective responsibility of those on duty, rather than her personal responsibility.
Emergency fire fighting
23. Although the potential responsibility of all staff for emergency fire-fighting was identified in the Policy Manual, staff were not given the training to equip them to do this effectively.
Planning and implementation
Risk assessment
24. The fundamental failure under this head is the absence of any suitable and sufficient risk assessment. Without a suitable and sufficient risk assessment the process of fire safety management at Rosepark was fundamentally flawed[4255].
25. Although the management at Rosepark had engaged Mr. Reid to undertake a risk assessment in January 2003, the exercise undertaken by him did not produce a suitable and sufficient risk assessment. Indeed, management did not itself undertake, in the context of Mr. Reid's exercise, any real assessment of the risks. Thomas Balmer, the person responsible for fire safety at Rosepark was not involved in the process.
26. There appears to have been a fundamental misapprehension of what the process of risk assessment required of management.
28.1. He relied on the appointment of Mr. Reid[4256]. He stated, for example, that they engaged a health and safety expert "just to have like an external eye coming in to make sure that we had the safest practices or if they had any concerns"[4257].
28.2. Mr. Balmer really left it to Mr. Reid and did not himself apply his mind in the context of fire to the hazards, thinking about who was at risk, the nature of the hazards and the control measures[4258]. He assumed that Mr. Reid would have applied his mind to the question of risks to the residents[4259].
28.3. He also stated that "any input requirement for any risk assessment would fall onto the remit of the Care Manager and if it applied, in any shape or form to ourselves, it would immediately be raised to myself"[4260]. This represented a clear misunderstanding of the position.
Inspection of electrical installation
27. Had the process of risk assessment been addressed systematically, management would have addressed the question of whether or not potential sources of ignition were adequately controlled. In that regard management should have addressed the question of whether or not it had in place adequate arrangements for the maintenance of the electrical installation.
Emergency Plan
28. The Emergency Plan is a key control measure. The Emergency Plan requires to be written down, to avoid ambiguity and to provide a clear point of reference for training.
Procedure in the event of a fire alarm
29. A key part of the Emergency Plan - namely, how staff should respond in the event of a fire alarm - was not written down anywhere. This, in itself, was a serious deficiency[4261]. Leaving aside the merits or otherwise of the particular procedure adopted:
a. The question of whether or not there was a rider to the procedure as described by Mr. Balmer would have been settled had the procedure been in writing.
b. The very fact of articulating the procedure in writing would have forced management to address the relationship between that rider and the basic proposition that staff should phone the Fire Service only if they found a fire.
c. There was a lack of clarity as to what was to happen if staff did not find a fire, and this was reflected in uncertainty on the part of the staff in that regard.
d. It meant that the procedure could not be clearly identified and reviewed: (a) by someone assisting management to undertake a fire risk assessment; or (b) by any regulator who might be interested. In fact, the only statement in writing of a procedure to be followed in the event of the fire alarm sounding (set out in Pro 656) was directly inconsistent with that followed at the Home[4262]. Further, someone - such as Mr. Reid - who viewed the video and was not aware of the practice at Rosepark might be misled as to the procedure which was in fact followed[4263]. That misapprehension would be compounded if the person looked at questionnaires where the answer (D) had been given to Question 10[4264].
30. The procedure adopted was fundamentally flawed. That fundamental flaw was illustrated by the false alarms in December 2003 and, tragically, by the events of 31 January 2004. Whatever the origin of the procedure, the deficiencies of the procedure should have been identified through a suitable and sufficient process of risk assessment.
Evacuation plan
31. Rosepark had adopted an appropriate general approach to evacuation - namely progressive horizontal evacuation. That was, in principle, an appropriate strategy for a Care Home to adopt. But management had not addressed how, as a practical matter, that could be achieved, particularly in the case of corridor 4.
Setting performance standards
32. Management did not articulate performance standards in relation to key matters in relation to fire safety, including:
40.1. Training and drills.
40.2. Whether bedroom doors could be left open and, if so, in what circumstances.
Monitoring
33. One cannot have effective health and safety management which operates purely reactively. Otherwise, management may think that something is working when in fact it is not[4265]. The Approved Code of Practice refers to "active monitoring" which is checking in a proactive fashion that the standards of performance which management has set are in fact being achieved[4266].
34. The Approved Code of Practice states that it may be appropriate to record monitoring activity to identify any underlying themes or trend which may not be apparent from looking at events in isolation. Recording provides a discipline internally within the organization, proving to the organization itself that its system is working, and also provides a proof of audit which can be shown to an external auditor or regulator. It may also enable problems which would otherwise go unrecognized to be identified, for example if there is a series of false alarms which reflect an underlying problem or which is creating confusion[4267].
35. Depending on the nature and size of the organization, it need not necessarily be the duty holder himself who undertakes the monitoring, but the duty holder has a responsibility to ensure that there is an appropriate system of monitoring in place - a system in which monitoring occurs, is effective, and which brings the results back to the duty holder. In a smaller organization, it may well be appropriate for the duty holder to undertake the monitoring or at least to be part of the monitoring team, not least to be seen to be championing the process[4268]. Furthermore:-
a. The monitoring should be done by someone who is one step remote from the activity being monitored. So, for example, in a context where Matron was responsible for training staff, it would be appropriate for someone else to monitor the delivery of training in order to make sure that what she was delivering matched what the management expected to happen[4269].
b. If monitoring is delegated, there must be a system of reporting back the results of the monitoring. It is essential that the duty holder has a clear and accurate view of the effectiveness of the health and safety arrangements[4270].
c. If monitoring has been delegated, management must fix the standards or criteria against which monitoring is to take place[4271].
36. The Approved Code of Practice enjoins that the immediate and underlying causes of incidents and accidents should be investigated to ensure that preventive and proactive measures are in place and effective[4272]. "Incidents" would include "near misses", situations which have the potential to cause harm. The recognition and investigation of such events is just as important as investigation of events which do in fact cause harm[4273].
Proactive monitoring
37. The management at Rosepark took an essentially reactive approach to monitoring and auditing in this context. When asked what he understood by the idea of auditing, Mr. Balmer explained that "it is reactionary to a particular situation, whether it be any particular training or staff not turning up or sickness all that ... that is audited and taken care off". It was put to him "do you again in relation to that really have in mind a situation where you respond to a problem that happens to arise?" and the response was "That was our general modus operandi, yes. As soon as a problem had arisen, take great care of, investigate it, outcome audit it and move forward"[4274].
38. The need for proactive monitoring was illustrated in the evidence of Thomas Balmer.
a. He assumed, erroneously, that corridor firedoors were closed at night.
b. He assumed, erroneously, that bedroom doors would, generally speaking, be kept closed.
c. He assumed, erroneously, that firedrills were held twice a year or six monthly.
d. He assumed, erroneously, that nightshift staff had been participating in drills.
39. The management of Rosepark Care Home undertook no monitoring or auditing of any of the following matters:-
36.1. The frequency of fire drills.
36.2. Which staff had the benefit of fire drills.
36.3. Whether nightstaff were attending fire drills.
36.5. The practice in relation to bedroom doors[4275].
36.6. Whether all staff had completed induction training which included an element of fire safety[4276].
36.7. Whether staff were receiving refresher training in fire safety[4277]
36.8. The incidence and frequency of false alarms[4278].
40. Mr. Balmer had never looked at individual staff training records in order to find out whether or not members of staff or what training members of staff had in relation to matters of fire safety[4279]. When asked whether he would regard it as part of the responsibility of management to audit the effectiveness and practical implementation of policies and procedures, Mr. Balmer said this:-
"Well, I would expect our care manager to be on top of training, of all matters of training, and if she had any concerns relating to that I would expect the care manager to bring it to my attention"[4280].
This was not an adequate approach.
Responding to incidents
41. In fact, the evidence does not support the proposition that management did in fact proceed in this way:
"As soon as a problem had arisen, take great care of, investigate it, outcome audit it and move forward."
Management did not respond effectively to the issues presented by the false alarms in the attic in December 2003. The circumstances of these incidents revealed an alarming state of affairs, which should have prompted a serious and swift re-appraisal of fire safety arrangements on the nightshift.
42. Effective monitoring will depend on appropriate record-keeping. In this respect, too the systems at Rosepark were inadequate. Mr. Balmer accepted that false or unwanted alarms should be recorded. He recognized that the pattern of alarms might indicate a particular problem which would need to be sorted out. He also recognized that if there were too many false alarms staff might not react appropriately in a real emergency situation[4281]. Yet he neither instructed Mr. Clark to keep such records, nor took steps to check whether a record of false alarms was being kept.
Review
43. An effective process of review will identify any deficiencies disclosed by the process of monitoring, and articulate the remedial steps (and the time frame) required. The remedial actions must be properly followed through, implemented and closed out.
44. In addition, review of the system requires to be undertaken in order to ensure that it is appropriate in light of changes in legislation, in the workplace environment (e.g. changes in dependency levels of residents) or external changes (e.g. removal of fire service cover during a strike)[4282].
45. The level of dependency of residents at Rosepark had changed over time. Even if the number of residents in corridor 4 (depending on their level of dependency) had been acceptable when the Home opened, the level of dependency of the residents by January 2004 made it unacceptable to have that number of residents in that corridor.
46. Management were given two specific external prompts to a review of their fire safety arrangements.
56.1. The Fire Service invited a review of the emergency arrangements in the context of the Millenium Bug.
56.2. The Care Commission invited a review of the emergency arrangements in the context of the Fire Brigade Union strike.
On neither of these occasions did management undertake any fundamental review of the fire safety arrangements in place. They represent missed opportunities.
47. There were also other events which could and should have prompted management to review critically certain features of their fire safety arrangements.
54.1. The introduction of the Fire Safety Video. Despite recognizing that this recommended a procedure quite different from that followed at Rosepark, management took no steps - for example by consulting the local Fire Safety Officer - to ascertain whether or not the procedures should be changed. Nor did the statements in the video in relation to closing bedroom doors lead them to review their practice in that regard.
54.2. Management had also been given clear advice in relation to the question of bedroom doors in the context of the extensions to Croftbank. Yet this did not prompt a review of the position at Rosepark.
54.3. In the context of the second Croftbank extension, Mr. Balmer had a discussion with Mr. McNeilly about the ratio of staff to residents in particular zones, in which Mr. McNeilly would have been relying on the SHTM 84 guidance. Yet this discussion did not prompt any review of the position at Rosepark.
These deficiencies contributed to the deaths
48. Had there been an adequate system of fire safety management at Rosepark, the situation on 31 January 2004 would have been quite different.
49. Had the process of risk assessment identified the need for inspection and testing of the electrical system, and management put in place appropriate arrangements for the inspection of the system, the absence of appropriate cable protection would have been identified and the fire would not have occurred.
50. But even if the fire had occurred, a number of key circumstances would have been quite different if there had been an adequate system of fire safety management:
54.1. A suitable and sufficient risk assessment would have been undertaken, with the consequences identified above as regards: (a) the protection of the means of escape; (b) the Emergency Procedure and the arrangements for contacting the Fire Service; and (c) the arrangements for training and drills.
54.2. Management would have clearly articulated the roles and responsibilities of: (a) Matron; (b) the nightshift staff nurse in charge; (c) members of staff who might require to engage in fire-fighting. Management would have articulated clearly what it expected as regards training and drills, would have ascertained whether or not Matron was in a position to meet its requirements, and would have provided such additional resources as it identified as being necessary to achieve its objectives.
54.3. Management would have appreciated that a change in the fire alarm panel was something which required appropriate instruction to be given to staff who would need to interpret and operate the panel.
54.4. Management would have put in place a control system, involving appropriate standard-setting and record-keeping, and proactive monitoring to ensure that its expectations were being met.
54.5. Management would have responded actively to "near misses", and in particular to the serious situation exemplified by the December 2003 false alarms.
54.6. Management would have reviewed the system actively in response to the external stimuli mentioned above.
51. The way the staff responded on the night of 31 January 2004 was just what might be expected of staff who had not received adequate fire safety training, and who had - by reason of exposure to false alarms - become complacent. Had the staff been properly trained in a manner consonant with the tasks that would face them in that emergency situation they would have behaved quite differently and that, either on its own, or in conjunction with other changes which would have been put in place had the system of fire safety management not been defective, have avoided some or all of the deaths.
CHAPTER 45(4) (formerly 39(4)): MANAGEMENT OF THE CONSTRUCTION PROCESS
Proposed determination:
1. The management of the construction of Rosepark was defective.
2. This contributed to the accident and to the deaths.
1. Mr. Balmer took what was, for a building of this size and nature, an unorthodox approach to its procurement[4283]. He chose to manage the project himself, engaging the separate trades on individual and separate contracts[4284]. He accepted that he was, in effect, the main contractor and clerk of works for the project[4285].
2. The process of co-ordinating a construction project requires a certain skill[4286]. As Mr. Spencely put it "building is a serious business and somebody needs to understand the totality of the building"[4287]. A professional main contractor would, if he is not on site himself, have a site agent[4288] or clerk of works on site. Mr. Balmer was on site himself, but did not have the experience to be expected either of a professional main contractor or of a clerk of works[4289]. While he had some experience of project managing construction projects, he had no experience of managing a project which involved structural fire precautions of the sort required at Rosepark[4290]. He did not engage a professional clerk of works to protect his position[4291]. Nor did he engage a professional architect to provide the periodic supervision which would be implied in a full service engagement[4292].
3. This had two consequences particularly germane to the circumstances of this inquiry.
3.1. A professional main contractor would have insisted on seeing testing and inspection documentation from the electrical contractor as well as a certificate under the IEE Regulations[4293].
3.2. There were no fire dampers. Mr. Balmer appreciated that the drawing referred to fire dampers. He inferred what the purpose of a fire damper was, but did not know what a fire damper looked like. A professional main contractor or clerk of works would have identified the absence of dampers. This would have been evident to someone who knew what the type of damper which would at that time have been used in a building such as this looked like.
4. Mr. Balmer did not ask for inspection and testing documentation for the electrical installation following completion[4294]. Had he done so, the absence of inspection and testing would have become apparent and such inspection would, no doubt, have been undertaken. An inspection in accordance with IEE requirements would have disclosed the absence of protective insulation at the cable knockout.
5. Although it may be concluded that the absence of fire dampers resulted in the passage of smoke and toxic gases through the ductwork which made a contribution to the toxic atmosphere in corridor 3 there are significant uncertainties as to the quantity and significance thereof relative to the smoke and toxic gases passing through the open corridor firedoor[4295]. The Crown has sought a determination in respect of this issue under section 6(1)(c). Although a material contribution to the toxic atmosphere would be enough[4296], given the uncertainties attendant on the matter, the Crown does not seek a determination under this head in respect of fire dampers.
CHAPTER 45(5) (Formerly 39(5)) - THE INTERACTION BETWEEN ROSEPARK AND LANARKSHIRE HEALTH BOARD
Proposed Determination
1. The following were defects in the system of working by Lanarkshire Health Board as regards regulation of nursing homes, and in particular Rosepark Care Home, which contributed to the deaths:
1.1 The regime of inspection instituted by Lanarkshire Health Board, and operating during the period 1992 to 2002, was based on an inadequate appreciation of the scope of the statutory responsibilities of Health Boards under the Nursing Homes Registration (Scotland) Regulations 1990 ("the 1990 Regulations");
1.2 The regime of inspection was not advised by any clear determination by the Health Board of what standards of fire precautions it considered to be sufficient and suitable in terms of regulation 13 of the 1990 Regulations;
1.3 The system of working of the inspection teams of Lanarkshire Health Board between 1992 and 2002 was defective in that it did not recognize that it was for the Health Board, through its inspectors, to examine the sufficiency and suitability of all of the facilities provided, precautions taken and arrangements made by the person registered, as regards fire precautions, under regulation 13 of the 1990 Regulations;
1.4 The system of working of the inspection teams of Lanarkshire Health Board between 1992 and 2002 was defective in that it was conducted on the basis of a fundamental misunderstanding of the role of Strathclyde Fire and Rescue Service in the inspection of nursing homes over that period of time.
2. The defects in the systems of work of Lanarkshire Health Board contributed to the deaths of Margaret Gow and Isabella MacLachlan. Absent such defects the other deaths might have been avoided.
The following findings fall to be made in light of the evidence contained in Chapter 22B "Interaction between Rosepark and Lanarkshire Health Board 1992-2002"
1. In terms of regulation 13(1) of the Nursing Homes (Registration) (Scotland) 1990 Regulations it was a matter for the Health Board to determine what it considered to be sufficient and suitable as regards those facilities to be provided, precautions to be taken and arrangements to be made by the person registered in terms of regulation 13(2)-(4)[4297]
2. The direction in regulation 13(1) that the standard of those facilities to be provided, precautions to be taken and arrangements to be made, in terms of regulation 13(2)-(4), shall be maintained for so long as registration remains in force carried with it a responsibility on the part of the Health Board, through the inspectors appointed in terms of regulation 11, to apply the standards it had set in the process of inspection which regulation 12 prescribed.
3. The Health Board took inadequate steps to comply with its statutory responsibility under regulation 13(1) for determining the sufficiency and suitability of the facilities provided, precautions taken and arrangements under that regulation in respect of matters of fire safety in nursing homes, and for checking that the standards it had determined were being maintained at Rosepark.
4. The evidence of the Health Board inspectors demonstrated that there was a superficial approach to inspection of matters of fire safety:
· It was an approach that was not advised by any clear setting of standards of fire precautions by the Health Board.
· It was an approach that was not advised by any, or adequate, training of inspectors in the standards of fire safety expected by the Health Board such that they were suitably qualified to inspect standards of fire precautions at Rosepark[4298];
· It was, therefore, an approach which was unlikely to secure that fire safety was being managed properly by the management at Rosepark[4299].
The defects in the systems of work of Lanarkshire Health Board contributed to each of the deaths of Margaret Gow and Isabella MacLachlan
5. Evidence was given by a consultant engineer and accident investigator, Rod Sylvester Evans. He was clearly qualified to speak to the role of a regulator in the position of the Health Board. Mr Sylvester Evans explained that management may respond to the way that regulators go about their task.
6. The role of the regulator affects the way that duty holders approach their task[4300].
7. If the regulator is not strong in the article of setting standards and looking at health and safety issues, or if the inspection regime is lightweight or offers insufficient guidance the duty holder may respond accordingly[4301].
8. A regulator may have focused on particular areas of concern that it knows about. Doing so may send a signal which may affect how the duty holder then goes about its duty[4302]. In addition there is always a veneer of compliance but the question is whether there is true understanding and implementation[4303]. Fire safety was an area which was not being sufficiently penetrated by the Health Board inspectors[4304]
9. Weak and ineffective regulation of safety can send the wrong signal to management. If a particular aspect of safety is not seen as a high priority by the regulator then it may well be considered low priority by management and only given lip service by management. Lack of criticism may be inferred by management as acceptance of the level of safety provided[4305].
10. Had proper consideration been given by the Health Board to the matter it is likely that it would have determined formally, and enforced through suitably qualified inspectors, standards of fire safety which built in the following particular precautions:
· An immediate call to the Fire Brigade should be made whenever the fire alarm sounds[4306];
· Bedroom doors should be kept shut at night[4307], or appropriate arrangements put in place to secure that bedroom doors were immediately closed in the event of a fire alarm sounding in the Home;
· Fire Drills, and refresher training, covering the procedure to be followed on the sounding of an alarm, should be attended by all staff, including night staff[4308].
11. If such precautions had been enforced during the inspections by the Health Board it is probable that they would have been followed, and adhered to[4309].
12. Had the bedroom doors been closed and the Fire Brigade been called immediately on the night of the fire, and had the staff been effectively trained and drilled in what to do in the event of a fire alarm sounding, the deaths of Margaret Gow and Isabella MacLachlan would probably have been avoided[4310]. The other deaths might have been avoided[4311].
CHAPTER 46(1) (Formerly chapter 40(2)) - ENFORCEMENT OF THE FIRE PRECAUTIONS LEGISLATION
The purpose of this chapter is to examine the statutory responsibilities of Strathclyde Fire and Rescue ("SF&R") for enforcement of the workplace fire precautions legislation under regulation 10 of the Fire Precautions (Workplace) Regulations 1997. It will consider the terms of the relevant legislation, the guidance available to Fire Services in Scotland relative to enforcement policy, and the evidence of witnesses so far as it bears upon the approach of SF&R, to enforcement.
Having regard to the evidence considered in this chapter it is proposed by the Crown, under reference to section 6(1)(e) of the 1976 Act, that the following were facts relevant to the circumstances of the deaths:
1. Enforcement of the Fire Precautions (Workplace) Regulations 1997 was entirely dependent on a risk based approach which determined the premises that would attract inspection. At least in the area of operation of SF&R, care homes were not being inspected under the 1997 Regulations at all at the time of the fire.
2. Section 10 of the Fire Precautions Act 1971 authorised Fire and Rescue Authorities to seek a prohibition or restriction on the use of premises involving excessive risk to persons in case of fire (itself a remedy of last resort, as explained in chapter 46(1)). That section apart, the only situations which would have caused SF&R to be at a care home prior to the fire were (i) in the context of section 1(1)(d) visits or the giving of advice under section 1(1)(f) of the Fire Services Act 1947; (ii) a situation where an issue of concern has been raised direct by a third party; (iii) at the request of the regulator (in which case SF&R would inspect), and (iv) at the invitation of the owner of the care home. Thus, the organisation with the expertise in matters of fire safety was not inspecting care homes regularly.
Introductory
1. With effect from 1st December 1997 the Fire Precautions (Workplace) Regulations 1997 ("the 1997 Regulations") came into force. The substantive provisions of the 1997 Regulations were contained in part II[4312].
2. Regulation 3 provided for the application of the provisions of part II, including, for present purposes, an employer. Regulation 4 made provision for firefighting and fire detection. Regulation 5 made provision for emergency routes and exits in the event of fire. Regulation 6 made provision for maintenance of the workplace and safety devices (in so far as they relate to fire precautions).
3. Part III provided for amendments to the Management of Health and Safety at Work Regulations 1992[4313] ("the 1992 Regulations"). The effect of the amendments was to extend to the requirements of the 1992 Regulations the protections in part II of the 1997 Regulations. In particular the risk assessment required by regulation 3 of the 1992 Regulations was to extend to the requirements and prohibitions imposed on the employer by virtue of part II of the 1997 Regulations.
4. Under regulation 10 of the 1997 Regulations fire authorities were given responsibility not only for enforcing the provisions of part II of the 1997 Regulations but also regulations 1 to 4, and 6 to 11 of the 1992 Regulations, in so far as they related to general fire precautions (collectively known as "the workplace fire precautions legislation"). "General fire precautions" were defined in regulation 9 of the 1997 Regulations as meaning "measures which are to be taken or observed in relation to the risk to the safety of employees in case of fire in a workplace..."
5. The Fire Precautions Workplace (Amendment) Regulations 1999 ("the 1999 Regulations") came into force on 1st December 1999 in order to address perceived inadequacies in the implementation of the EC Directives which gave rise to the 1992 Regulations, and in particular to bring within the purview of the protections in the 1997 Regulations those premises which were certificated under the Fire Precautions Act 1971, and were previously excepted by virtue of regulation 3(5) of the 1997 Regulations[4314].
6. On 29th December 1999 the Management of Health and Safety at Work Regulations 1999 ("the 1999 Management Regulations") came into force[4315]. By regulation 3 every employer was required to make a suitable and sufficient assessment of (a) the risks to the health and safety of his employees to which they were exposed whilst at work and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, for the purpose of identifying the measures he needed to take to comply with the requirements and prohibitions imposed upon him by inter alia Part II of the 1997 Regulations (as amended).
7. The definition of "general fire precautions" in regulation 9, and regulations 10(1) and (2) of the 1997 Regulations were left unamended by the coming into force of the 1999 Regulations. Regulations 9 and 10 of the 1997 Regulations (as amended) were therefore in the following terms:
"9...
(2) In these Regulations" the workplace
fire precautions legislation" means
(a) Part II of these Regulations ...
(b) regulations 1 to 5, 7 to 12 and 13(2) and (3) of the 1999 Management
Regulations, in so far as those regulations-
(i) impose requirements concerning general fire precautions to be taken or
observed by an employer; and
(ii) have effect in relation to a workplace in Great Britain other than an
excepted workplace,
and for this purpose "general fire precautions" means measures which are to be
taken or observed in relation to the risk to the safety of employees in case of
fire in the workplace, other than any special precautions in connection with
the carrying on of any process...
10. (1) It shall be the duty of every fire authority to
enforce within their area the workplace fire precautions legislation.
(2) A fire authority may perform their functions under these Regulations
through inspectors appointed by them pursuant to section 18(1) of the 1971
Act..."
8. A question has arisen in the Inquiry as to whether these provisions obliged Strathclyde Fire and Rescue ("SF&R") to undertake inspections of workplaces for the purposes of enforcement of the fire precautions legislation. The importance of the question arises from the probability that a system of inspection which included Rosepark would have involved a review of Mr Reid's risk assessment .
9. The evidence bearing upon these matters is set out below.
John Russell
1. John Russell was employed by SF&RSF&R from 1977. For about 18 years prior to 2004 Mr Russell served in the Community Safety Department of SF&R[4316]. He was a fire safety officer serving with SF&R when the Fire Precautions (Workplace) Regulations 1997 ("the 1997 Regulations") came into force[4317].
2. SF&R maintained an inspection regime in respect of premises which were designated under the Fire Precautions Act 1971 ("the 1971 Act")[4318]. Between 1971 and 1997 certificated premises were inspected periodically to ensure that premises were complying with the conditions contained in their Fire Certificate. There were recognized timescales for inspection depending on the type of premises most nearly concerned[4319].
3. The process of certification under the 1971 Act required owners of premises to agree a fire routine procedure and to ensure that all members of staff were aware of that procedure. The agreed procedure was actually contained within the fire certificate.
4. Section 10 of the 1971 Act was concerned with premises involving excessive risk to persons in case of fire. The section was applicable to nursing homes[4320]. It conferred on the Fire Authority (as defined in section 43 of the 1971 Act, being "the authority discharging in the area in which the premises are to be situated the functions of fire authority under the Fire Services Act 1947) the power to apply to the Court for an order prohibiting or restricting the use of any premises in respect of which the Fire Authority were satisfied that the risk to persons was so serious that, until such steps had been taken to reduce the risk to a reasonable level, such an order should be granted[4321].
5. Section 10 did not give rise to any specific regime of inspection by SF&R. It could take action whenever its attention was drawn to severe problems within particular premises. Section 10 was kept for very extreme circumstances where the risk of death was imminent. There might be other circumstances in which action was taken, such as where the Fire Brigade were on the premises undertaking inspections under other legislation, or where the Health Board had drawn its attention to an imminent fire risk. There was no proactive system of inspection under the 1971 Act[4322].
6. Section 10(2) of the 1971 Act as it was immediately before part 3 of the Fire (Scotland) Act 2005 came into force remained similar in effect albeit the procedure had been modified to allow for the service by the appropriate fire authority of a prohibition notice[4323].
7. The Fire Precautions (Workplace) Regulations 1997 ("the 1997 Regulations") came into force on 1st December 1997[4324].
8. Mr Russell was asked how SF&R went about enforcement of the 1997 Regulations after they came into force. His response was that the Government had issued certain guidance and there had been certain discussions which revolved around the need for "a light touch". The inference was that the 1997 Regulations had been written in such a way that the employer was responsible for fire safety in the workplace[4325].
9. Fire and Rescue services mainly concerned themselves with making sure that employers knew their responsibilities under the 1997 Regulations, and their attention was drawn to the Employer's Guide[4326]. In terms of enforcement SF&R was advised that when any contravention of the 1997 Regulations came to their attention they would enforce them. For the most part, however, the Government was expecting high levels of self compliance[4327].
10. There was no programmed system of inspection of premises instituted for the purposes of enforcement of the 1997 Regulations. There was no guidance indicating that routine inspections should be undertaken. Such was the existing inspection workload that it would have been impossible for there to have been any planned in inspection programme. Inspection would be reactive to a complaint having been made to the Fire Brigade[4328].
11. That position did not change when the 1997 Regulations were amended in 1999. The Fire Brigade was moving in the direction of a risk based regime of inspection and balancing its inspection resources relative to its duties under all applicable legislation. But the advice the Fire Brigade was getting was that the 1997 Regulations were different from the 1971 Act. They were more akin to health and safety legislation which focused on the employer's responsibility to his employees. There were also arrangements between the Fire Brigade and the Health Board (and latterly the Care Commission)[4329].
12. Mr Russell recognised that if the procedure for dealing with a fire situation in a nursing home are inadequate that may have consequences both for residents and for employees[4330]
13. In summary, under the original 1997 Regulations, there was no proactive programme of inspection in furtherance of the duty of enforcement contained in regulation 10[4331].
14. Mr Russell was referred to the two productions contained in the first inventory of productions lodged on behalf of the Scottish Ministers, being (i) a letter dated 23 December 1997 from Mrs M B Gunn, Head of the Fire Service and Emergency Planning Division of the Scottish Office Home Department, attaching a Memorandum with guidance on the Fire Precautions (Workplace) Regulations 1997, and (ii) a further letter dated 30 June 2000 from Mrs Gunn, this time on behalf of the Fire Service & Emergency Planning Division of the Justice Department of the Scottish Executive, attaching a Memorandum with guidance on the 1997 Regulations as amended by the Fire Precautions (Workplace) (Amendment) Regulations 1999[4332].
15. Mr Russell recollected looking at various pieces of guidance at the time when the Regulations came into force, but he did not specifically recall the memoranda just described[4333].
16. From the first item in the first inventory for the Scottish Ministers Mr Russell was referred to paragraph 45 of the Memorandum attached to Mrs Gunn's letter of 23 December 1997. Paragraph 45 was in the following terms:
"45. It is for Fire Authorities to determine their own enforcement policies. However, in their approach to enforcement of the Fire Regulations, they will need to consider scheduling their inspection programme to ensure that workplaces which pose a significant life risk in case of fire are a priority for both their initial and re-inspection programmes"
17. Asked to consider whether this guidance implied that what was in contemplation was that there would be something more than merely a reactive inspection programme under regulation 10, Mr Russell responded by saying that that was what Fire and Rescue Services were working towards. There was, however, no guidance to the effect that the Fire and Rescue Services had a specific duty to inspect all workplaces. It would, in any event, have been unrealistic given the huge number of workplaces concerned and the fact that Fire and Rescue Services had a limited number of inspecting officers. There would have been resource and staffing implications[4334].
18. So, there was no inspection programme. But Fire and Rescue Services were looking, in discussion with HM Fire Inspectorate and others, about how it could come about. Any arrangement would have to be risk appropriate and fit in with the available staffing and resources. The regulatory impact assessment accompanying the 1997 Regulations stated that there were no significant or substantial cost implications for Fire and Rescue services in what was contained in them. An inspection regime for every workplace would have had cost implications[4335].
19. The passage into law of the 1997 Regulations was accompanied by no list of the new workplaces that were caught. Mr Russell estimated that some 100,000 additional premises in the Strathclyde area may have come under the scope of the 1997 Regulations, as compared with some 20-30,000 premises of which the Fire Brigade were already aware[4336].
20. Mr Russell's position was encapsulated in the propositions put to him by the Court thus:
"Taking the [memorandum] on its own and reading it objectively it could well be said that it might contemplate an inspection programme; what you're saying is that what you were told by government, namely that there should be a light touch, and the absence of any specific extra resources being made available to carry out an extended inspection programme, this did not take place and what, in practice, was done by the Fire and Rescue Services [was] merely to react if a matter was drawn to their attention, either as a result of complaint, or an invitation to inspect premises or, indeed, from any other source.[4337]"
21. Fire and Rescue Services were still working towards looking at how, when resources, processes and procedures were agreed, they might be able to put a programme into place[4338].
22. In respect of the second item in the First Inventory for the Scottish Ministers, Mr Russell was referred to paragraph 59 of the Memorandum. It was in the following terms:
"It is for Fire Authorities to determine their own enforcement policies. However, in their approach to enforcement of the Fire Regulations, they will need to consider their existing programme of inspections to ensure that inspection of workplaces which pose a significant life risk in case of fire are a priority. They will be assisted in this matter with the development of a risk based approach to frequency of inspection of workplaces currently being undertaken as a joint initiative between the Home Office and the Chief and Assistant Chief Fire Officers' Association, with participation also by HM Inspectorate of Fire Services for Scotland. This work forms part of a strategic approach to fire risk assessment being developed by a working party representing a cross section of service interests. It is hoped that the guidance from the working party will be available in Autumn 2000."
23. Mr Russell confirmed that his response to questions arising from paragraph 45 of the earlier guidance remained the same. In other words what was contemplated to be the way ahead in 1997 held true in 1999[4339].
24. Mr Russell was also referred to paragraph 61 of the Memorandum. It was in the following terms:
"Fire authorities must be able to demonstrate that they are carrying out their duty to enforce the Fire Regulations. Regulation 10 (enforcement) does not impose a duty to cause workplaces within their area to be inspected for the purposes of enforcing the workplace fire precautions legislation. However, given the power to serve enforcement and prohibition notices and to commence prosecutions, there is an implicit need to inspect workplaces. So not only could a failure to discharge the duty to enforce (by not exercising specific enforcement powers where appropriate) result in a liability; but also a failure to adopt an inspection policy and programme, to ensure that the authority is complying with the duty to enforce, could lead to the same conclusion."
25. Mr Russell stated that some fire officers had argued in favour of a duty to inspect (rather than a power to do so, as Mr Russell put it). However, the creation of such a duty would have had staffing and resource implications. The Fire and Rescue Services were quite stretched in terms of staffing and resources as it was. In any event, the emphasis was on light touch and the avoidance of over-regulation. Such was how Mr Russell described the political ethos and imperative at the time[4340].
26. In as much as there might be resource implications in establishing a system of inspection Mr Russell confirmed the advice in Mrs Gunn's letter of 30th June 2000 which was:
"There should be few costs for fire authorities arising from the introduction of the 1999 Regulations and publication of the guidance "FIRE SAFETY An employer's guide"[4341]. The Regulatory Impact Assessment, which was laid with the Regulations before Parliament and relates only to those costs directly attributable to the introduction of the Regulations, identified costs which were expected to be restricted to the purchase of copies of the Regulations and the guide. The extension to the scope of the 1997 Regulations and the changes to the enforcement regime were not expected to give rise to other significant costs.[4342]"
27. The Good Enforcement Concordat advised regulatory authorities to take a light touch to enforcement in their dealings with commerce and industry, and to allow every opportunity for compliance before the stage of enforcement was reached[4343].
28. Prior to the 1997 Regulations coming into force HM Fire Inspectorate had explained to Fire and Rescue Services the ethos behind the new regulations and how it was expected that the Fire and Rescuse Services would discharge their responsibilities relative to them. The Inspectorate had said that the inspection and re-inspection programme would be minimal. There might be sampling inspections. For the most part, however, the advice which Mr Russell encountered was that the 1997 Regulations were based on high levels of compliance with minimal impact in terms of inspection[4344].
29. HM Fire Inspectorate also monitored performance of all of the Fire and Rescue Services relative to enforcement activities under the 1997 Regulations[4345].
30. In summary, it was only if the Fire Brigade was invited by the owner into a workplace, if there was a referral by the regulator (Health Board and then Care Commission) or if there had been a specific complaint about fire precautions that the Fire Brigade would come to be inspecting within a Care Home, and in particular inspecting the premises' fire risk assessment[4346].
Hugh Adie
31. Between 1994 and 2004 Mr Adie was the Deputy to the Assistant Firemaster, Community Safety, based as Strathclyde Brigade Headquarters. Between January and September 2004 Mr Adie held the position of Assistant Firemaster, Community Safety[4347].
32. As far as visits to care homes were concerned they were underpinned by section 1(1)(f) of the Fire Services Act 1947[4348]. Otherwise, there were no formal arrangements between Lanarkshire Health Board and SF&R in respect of nursing homes[4349].
33. SF&R did not have any statutory responsibility to go into nursing homes and inspect fire safety issues, unless requested to do so by the Health Board or the owner or occupier of the premises[4350].
34. As regards premises involving excessive risk to persons in case of fire, the powers available to fire services under section 10 of the 1971 Act were not backed by any system of inspection in Strathclyde which went beyond either reacting to a matter which was brought to the Fire Service's attention or taking up a matter that was discovered when the Fire Service was on the premises for other reasons[4351]. As far Mr Adie was aware that approach was the same across the other Scottish Fire Services[4352].
35. Mr Adie was familiar with the 1997 Regulations. Officers in SF&R who worked for Mr Adie were involved in enforcement of the 1997 Regulations. Other than on request, however, there was no regular inspection of nursing homes, and no regime of inspection was set down when the 1997 Regulations were introduced. The 1997 Regulations were seen to be self-regulatory[4353].
36. The establishment of a regime of inspection of all premises falling within the 1997 Regulations would have had financial consequences. There was no additional allocation of resources for that purpose[4354]
37. In Strathclyde there was no procedure for carrying out spot checks or systematic checks of premises to see if they were complying with the 1997 Regulations. Whether or not SF&R became involved in enforcing the 1997 Regulations would depend on someone identifying (and being able to identify) that there was an issue that required to be brought to the attention of the Fire Service[4355].
38. There might be circumstances in which premises would become the subject of inspection. If, for example, the Fire Service was asked for advice and guidance and visited the premises, there would be a record of that visit in the premises file. SF&R had a risk based assessment programme and such a visit would result in consideration being given to the risk catagorisation of the premises. If the premises presented a substantial risk, then that would result in a subsequent inspection. However, there was no formal programme of periodic inspection of all premises that fell within the 1997 Regulations. If there was no contact with SF&R then there would be no visit to the premises[4356].
39. Otherwise, the position in Strathclyde was that regulation 10 of the 1997 Regulations did not involve the undertaking of enforcement by means of a regime of regular inspection of nursing homes. Enforcement was either reactive or arose by reason of the Fire Service being on the premises for other reasons[4357]. To that extent enforcement depended on the capacity of individuals to identify breaches and report them[4358].
40. Mr Adie spoke to the "odd occasion" when a local Fire Safety Officer might contact a nursing home, note that from the premises file that there had not been a visit by the Fire Service for some time, and ask whether it would be appropriate for somebody to go along and visit on a goodwill basis. It would very much depend on the local fire safety officer's knowledge of the area and also his workload. Mr Adie was personally aware of two occasions when this occurred over a period of five years. While Mr Adie was based at Brigade Headquarters no consideration was given to placing such arrangements on a more formal footing[4359].
41. Mr Adie did regard it as unusual that Rosepark was not the subject of a fire safety inspection between 1992 and the fire in 2004[4360].
Jeff Ord
42. From May 1999 until January 2004 Mr Ord was the Firemaster of SF&R before taking up the position of HM Chief Inspector of Fire Services in Scotland[4361].
43. Mr Ord was asked for his understanding of the role of the Fire Service in enforcing the fire precautions. Mr Ord stated that there was a duty on the Fire Service to enforce the 1997 Regulations for the safety of employees. When Mr Ord took over as Firemaster Strathclyde already operated what he termed a "risk based approach towards fire safety in premises" based on a high, medium and low risk catagorisation. The number of inspections would be determined by the category of risk that particular premises fell within. This process of prioritisation of fire safety inspections applied to inspections under other statutory enactments (and, in particular and by inference, under the 1971 Act). Generally that approach was the same for workplaces where the 1997 Regulations applied[4362].
44. It was not part of the statutory duties of Fire and Rescue services under the 1971 Act to undertake fire safety inspections in nursing homes[4363].
45. When Mr Ord arrived at SF&R there was an existing programme of prioritisation for the inspection of premises designated under the 1971 Act[4364]. Nursing homes may by then have fallen within that process of prioiritisation. However, he was unsure whether in fact they did. Equally it was possible that SF&R inspected nursing homes but Mr Ord could not specifically say one way or the other[4365].
46. Even if nursing homes had fallen within the process of prioritisation, Mr Ord explained that he would have been surprised if they were treated as a high risk priority. This was because of (i) historic evidence of lack of fires at nursing homes; (ii) the fact that nursing homes had to go through a process of registration and obtain from the Fire Service a letter of comfort, and (iii) the requirement that nursing homes be constructed in accordance with Building Regulations and receive a completion certificate[4366].
47. Mr Ord was unaware of any process of reviewing premises files for the purposes of, or with a view to, inspection pursuant to regulation 10 of the 1997 Regulations[4367]
48. Before the fire Mr Ord was not specifically aware whether nursing homes fell into a programme of inspection for the purposes of regulation 10 of the 1997 Regulations[4368].
49. Mr Ord anticipated that there would have been meetings to review the type and number of premises that might be inspected under the 1997 Regulations. However, these would not be meetings and discussions that the Firemaster personally would have been involved in. They were more matters for the Director of Fire Safety[4369].
50. Mr Ord was referred to a passage from the evidence of Thomas McNeilly, the Fire Safety Officer at Bellshill, given on 25 January 2010. Mr McNeilly stated that his activities as a fire safety officer did not include activities directed towards enforcement of the fire precautions workplace legislation[4370]. Mr Ord expressed surprise on the basis that if workplaces were considered to be high risk for purposes of frequency of inspections then they ought to have been visited[4371].
51. A regular system of inspections to enforce the 1997 Regulations would have had resource implications and over and above the sum of £500,000 referred to in the letter of Mrs Gunn dated 23rd December 1997[4372]. Mr Ord understood that representations were made about resources at the time[4373]
52. SF&R were audited by HM Fire Inspectorate. As far as Mr Ord was aware there were no representations made about the level of inspection being undertaken by SF&R under the 1997 Regulations[4374].
Brian Sweeney
53. At the time when he gave his evidence Mr Sweeney was the Chief Officer of Strathclyde Fire and Rescue Service. He took up that position (known then by the title of Firemaster), initially on a temporary basis, on 1st March 2004. In the early 1990s Mr Sweeney was Station Officer i/c breathing apparatus and industrial training at the Brigade's training centre, Assistant Divisional Officer i/c Operations at Central Command Headquarters, then Head of Operations in Motherwell. After a period of time with the specialist investigation unit at Brigade Headquarters Mr Sweeney returned to Central Command as Divisional Officer, Grade 1, as head of personnel, then took up the position of Deputy Commander of Central Command. Between about July 2003 and 1st March 2004 Mr Sweeney was Deputy Firemaster. Between 2002 and 2003 Mr Sweeney was Director of Operations and Assistant Firemaster for Strathclyde[4375].
54. When the 1997 Regulations came into force Mr Sweeney's duties were confined to operations. There was another Deputy Commander who had charge of legislative fire safety enforcement[4376]
55. Nursing Homes were not designated under the Fire Precautions Act 1971 as requiring a Fire Certificate[4377]. The practical effect of not requiring a certificate was that they were not subject to a statutory regime of inspection by Fire and Rescue Services[4378].
58 The Fire Certificate for designated premises would set out, in respect of the premises to which it related, details relating to the means of sounding an alarm, the means of escape, the provision of portable firefighting equipment, instruction and training of staff, and the conduct of fire drills. The certificate would be issued and re-inspected on at least an annual basis. Nursing homes were not subject to that regime of inspection[4379].
59 Mr Sweeney was familiar with the 1997 Regulations[4380]. Mr Sweeney's evidence was that when the 1997 Regulations came into force there was no change to the approach taken by the Fire Service to non-certificated premises, such as nursing homes[4381].
60 In relation to enforcement under regulation 10, Mr Sweeney explained that the understanding, derived from messages from Government (both Scottish Office and Scottish Executive), was that the new regulatory regime was concerned with the relationship between employer and employee[4382]. The main duties under the 1971 Act were not being disapplied and the 1997 Regulations were ancillary to the 1971 Act regime. The 1997 Regulations were not to be the subject of a major new programme of inspection, regulation and control by the Fire and Rescue Services. Their task, when asked to do so, was to review the employer's risk assessment. As to who would do the "asking" Mr Sweeney referred to the premises owner, someone unfamiliar with the process of fire risk assessment who requested assistance, or a complaint in relation to fire precautions in particular premises[4383].
61 In the Strathclyde area there were perhaps 20,000 certificated premises. The introduction of the 1997 Regulations added enforcement authority to an additional 100,000, perhaps more, buildings. It was absolutely clear from the guidance given out that this was not a major new programme of enforcement[4384].
62 There was no expectation on the part of either UK Ministers or, latterly, the Scottish Executive that any additional burden would be placed on Fire and Rescue Services. Mr Sweeney recollected correspondence which reflected that an extra £500,000, across all of Scotland's Fire and Rescue Services, was to have been available to deal with any additional burdens. Government had undertaken an impact assessment and adjudged that no additional workload was to come from the introduction of the 1997 Regulations[4385].
63 The practicalities at the time were such that the 1997 Regulations did not give rise to a major new programme of inspections for buildings that had not been the subject of designation orders under the 1971 Act[4386].
64 After becoming Firemaster in 2004 Mr Sweeney did not become aware of any kind of system for the inspection of non-certificated premises under the 1997 Regulations. If there had been one Mr Sweeney would have expected to be aware of it[4387]. As far as Mr Sweeney was aware there was no inspection regime under the 1997 Regulations[4388]
65 Mr Sweeney was referred to the first production in the Scottish Ministers' first inventory, and in particular paragraphs 4 and 8 of Mrs Gunn's letter of 23 December 1997. Mr Sweeney's understanding of the position, in relation to the reference to risk assessment in paragraph 4, was that an examination of the risk assessment would only have proceeded on the basis that something deficient in its content had been brought to the attention of the Fire and Rescue Service. Paragraph 8 of the letter accorded with Mr Sweeney's understanding of the resource implications of the new Regulations[4389].
66 Under reference to paragraphs 40 and 45 of the Memorandum attached to Mrs Gunn's letter the Court asked whether there could be enforcement without inspection. Mr Sweeney's evidence was that Fire Services were being told that this was to be a self-regulatory regime where the enforcement methodology was to be reactive. That was his opinion at the time. He agreed that implicit in paragraph 45 of the memorandum was a suggestion that the existing inspection programme would be enhanced to ensure that workplaces which posed a significant life risk in case of fire were a priority for both initial and re-inspection programmes[4390].
67 Under reference to paragraph 59 of the memorandum attached to Mrs Gunn's letter dated 30th June 2000 Mr Sweeney interpreted the reference to "existing programming of inspections" as referring to certification inspections under the 1971 Act.[4391]
68 It is submitted that the proper construction of "existing programming of inspections" should not be construed so narrowly. What appears to have been contemplated by the authors is the development of a risk based approach to frequency of inspections of workplaces. No distinction can or should be drawn between certificated premises (to which the 1997 Regulations now applied) and non-certificated premises. In the result Mr Sweeney thought that SF&R was moving towards such a risk based approach, but not for the purpose of enforcement of the 1997 Regulations, as amended[4392]
69 Fire and Rescue Services were being advised that the approach under the 1997 Regulations would be enforcement through self-regulation and compliance with the Fire and Rescue Service coming in and taking action if necessary. The source of this advice appeared to be internal discussion with officers who had had discussions with government officials. The drive was towards deregulation, self-regulation, and a lighter touch and less burden on industry[4393].
70 Under reference to paragraph 61 of the memorandum Mr Sweeney made the point that if the purpose of the 1997 Regulations was to trigger an enforcement regime based on inspection then that should have been stated. Absent any additional resources a reasonable enforcement strategy might involve reacting to complaints from individuals or requests for advice but not inspecting as a matter of course[4394].
71 In the result, as far Mr Sweeney was aware, SF&R did not engage in a new programme of inspection[4395].
Care Commission
72 According to Elizabeth Norton of the Care Commission, Strathclyde Fire and Rescue Service did not have a system of regular inspection of care homes at the time when the Care Commission first became involved in regulating care homes[4396].
Charles Stewart
73 Mr Stewart served with SF&R until 1995. He then joined HM Inspectorate of Fire Services in Scotland. At retirement, in 2003, he held the position of Senior Assistant Inspector of Fire Services.[4397]
74 The function of the Inspectorate was to assist the Secretary of State by inspecting, monitoring and reporting on the eight fire services within Scotland[4398].
75 The inspection of fire services was undertaken by teams of three inspectors. Mr Stewart used to deal with matters of fire safety. His duties included examining the work of inspecting officers and considering returns from Fire Services[4399].
76 In about 1999 the Inspectorate introduced performance and monitoring reports. These were less frequent but more in depth than the annual reports.[4400]
77 Mr Stewart's duties included reporting on the extent of compliance by Fire Services with their statutory duties. At the time when the 1997 Regulations came into force many Fire Services were struggling to inspect all of their certificated premises under the 1971 Act. The government was looking to move the responsibility for inspection away from Fire Services in favour of a system of, essentially, self regulation[4401].
78 The extent to which Fire Services enforced the 1997 Regulations was the subject of inspection by the Inspectorate[4402]. Fire Authorities were encouraged to look at all of the premises on their books, whether certificated under the 1971 Act or not, and apply a risk based approach to determining whether there should be inspection under the 1997 Regulations[4403].
79 The approach to inspection of nursing homes probably varied. In Strathclyde there was really no way that the Fire Service could cope with the number of new premises[4404].
80 Care Homes were the kind of premises that attracted inspection under the 1997 Regulations. Whether they were inspected, however, was very much based on risk assessment. That assessment was very much based on whether or not the Fire Services in Scotland thought that the premises constituted a risk to persons in case of fire. Where the premises were purpose built, and they had an original goodwill report, central government was happy that the registration authority would manage the fire precautions within those premises[4405]. The encouragement from central government was to place the weight of resources on those premises most in need of attention[4406]. The evidence given by Mr Stewart may be though to resonate with Mr Todd's explanation for why the Health Boards came to be responsible for the regulation of fire safety in nursing homes, against a background where nursing homes were not certificated premises under the 1971 Act[4407]
81 Mr Stewart was not surprised that Rosepark had not been inspected between 1992 and 2004. SF&R had far too many premises that still required an initial inspection for them to be able to do so. The guidance in the late 1990s was to the effect that there would be no additional resources available[4408].
82 Mr Stewart spoke to an inspection of SF&R between 21st and 23rd November 2000 and relative Performance Monitoring Report. The inspectors, of whom Mr Stewart was one, would have considered the extent of inspection work relating to enforcement of the 1997 Regulations. If SF&R had given an initial letter of goodwill, and the premises were the subject of another regulatory authority (which, in the case of Rosepark, they were), then those premises would be well down the order of priority for inspection[4409].
83 The Performance Monitoring Report also made reference to an existing prioritisation process being in place for the 1997 Regulations[4410].
84 Paragraph 45 of the memorandum attached to Mrs Gunn's letter of 23rd December 1997, and paragraph 59 of the memorandum attached to Mrs Gunn's letter of 30th June 2000, illustrated the approach which involved an inspection programme that was subject to a process of risk analysis[4411].
85 Mr Stewart referred to an entry in the minutes of a meeting of "the Scottish Network CACFOA Fire Safety Committee Meeting" on 9th March 2000 in which he is recorded as having given a presentation in relation to determining the frequency of inspections under the 1997 Regulations (as amended in 1999). Mr Stewart recalled that this presentation related to work on which he was engaged in trying to rationalise and standardise the approach to frequency of inspection. There was at that point a concern about consistency of approach[4412].
86 The initiative from central government was for Fire Services not to incur financial cost by releasing personnel to try and identify the number of new premises in their area as a result of the coming into force of the 1997 Regulations[4413].
87 Over many years of annual inspections Mr Stewart had highlighted that the overwhelming majority of lives lost in fires occurred in domestic situations[4414].
Alan Sheach
88 Between 1989 and 2002 Mr Sheach was a fire safety officer with Fife Fire and Rescue Service ("FFRS")[4415].
89 Mr Sheach's duties as a fire safety officer included carrying out fire safety inspections in nursing homes in the Fife area[4416].
90 The inspections were undertaken on behalf of Fife Health Board and probably went on until Mr Sheach left FFRS in about 2001/2002[4417].
91 The view of Mr Sheach and his colleagues in Fife was that nursing homes should be classed as high risk sleeping accommodation[4418].
92 The scope of the inspection encompassed maintenance checks on extinguishers and emergency lighting, the occurrence and frequency of fire training, a physical inspection of the premises (including fire exits, fire doors, fire notices) and speaking to staff about training and drills. There might then be a test of the fire alarm[4419]. There was usually just one inspector involved and the visit would tend to last about one to two hours[4420].
93 These inspections covered all care homes in the area of FFRS, and occurred every six months[4421].
94 Mr Sheach would speak to one or two members of staff and check the fire log. He might ask what the actions of staff would be in terms of evacuation[4422].
95 FFRS also offered training services in the form of fire safety lectures and staff training, especially in new nursing homes. If there was any particular focus, it tended to be on the night staff. Evacuation was obviously much harder at night. So sometimes there would be exercises arranged during the day for the night staff to come in and attend[4423]. The purpose was to emphasise just how difficult it is physically to move people to a place of safety[4424].
96 Mr Sheach was asked about the relationship between FFRS and Fife Health Board. Mr Sheach advised that when FFRS carried out an inspection a report was sent to the Health Board. If a letter of comfort for the purposes of registration had been written it was followed up by the next Fire Brigade visit[4425].
97 Mr Sheach's understanding and recollection was that the inspections he had been describing did not have a statutory basis. It was done on a goodwill basis on behalf of the Health Board in the interests of promoting good fire safety in what FFRS recognised to be high risk premises[4426]. There was an agreement with the Health Board to do the inspections and, as far as Mr Sheach was aware, they were not being conducted under reference to any particular statutory power[4427].
98 Mr Sheach did not, however, believe that the inspections for Fife Health Board were inspections for the purposes of the 1997 Regulations [4428].
Colin Todd
99 Mr Todd gave evidence of his understanding about the practice of enforcement of the 1997 Regulations[4429].
100 In his experience there was, at the outset, very little enforcement of the 1997 Regulations[4430].
101 The message from central government was to adopt a light touch to enforcement. The legislation had been introduced out of necessity[4431], whereas the priority of government was community fire safety and reducing fire deaths in private dwellings rather than increasing the burden on industry. The 1997 Regulations were a manifestation of the minimalist approach of simply adopting verbatim the wording of the European Council Directive[4432]
102 By way of background the scrutiny report prepared by an inter-departmental Government task force had concluded that fire safety legislation and its mechanism of enforcement was uncoordinated, conflicting and confusing to the end user[4433].
103 When the United Kingdom's compliance with the Council Directives underpinning the 1997 Regulations was found to be wanting (in particular because the 1997 Regulations excluded premises requiring a certificate under the Fire Precautions Act 1971) the 1999 Regulations were passed[4434].
104 There was a gradual change in the approach to enforcement of the 1997 Regulations after 1997. Concerns in England and Wales that the earlier guidance was being interpreted to mean non-enforcement produced the Fire Precautions Act Circular No. 28[4435], which was essentially adopted by the Scottish Executive[4436]. The message now being communicated was that fire authorities would require to consider a prioritised programme for inspection[4437].
105 In Mr Todd's experience there was a gradual change in approach but it was stil subject to variation[4438]. Fire authorities were on occasions engaging in the inspection of workplaces, at generally (but not exclusively) high risk premises[4439].
106 There was a general understanding that the priority would be what became known as "assisted sleeping accommodation". That would include a care home. But it was for each fire authority to sort out its own priorities, knowing as it did the particular risks in its area[4440]. In terms of a generic type of prioritisation a care home would be at the top of the list[4441].
Sir Graham Meldrum
107 Sir Graham's experience in England and Wales was that the 1997 Regulations were enforced very much along the lines of making risk assessments of individual buildings where people were employed to work[4442].
108 Premises not previously within a fire authority's inspection programme were brought within that programme[4443].
109 However, although in England and Wales a risk based approach to enforcement was adopted, that approach was based on the number of people employed in the building. The extent to which premises fell within a process of inspection depended on the type of area that the Fire Service covered and the other premises in that area[4444].
Discussion
110 The most reliable evidence of SF&R's approach to enforcement of the 1997 Regulations was given by John Russell and Hugh Adie.
111 Their experience of matters of enforcement of fire safety legislation was derived from having been employed over many years in the Community Safety Department of SF&R.
112 Clearly, no regime of inspection that included nursing homes was established for the purposes of enforcement of the 1997 Regulations. Enforcement was either reactive or arose because the Fire Service was on the premises for other reasons.
113 The expression "light touch" is a consistent expression running through the evidence. Mr Todd's evidence was consistent with the evidence given by the officers of SF&R to the effect that, at least initially, the 1997 Regulations were seen as self-regulatory.
114 It is instructive that Alan Sheach gave evidence about what appears to have been a well established regime of inspection of nursing homes by FFRS. However, it was Mr Sheach's belief that that regime was not advised by the 1997 Regulations. Rather it was derived from an arrangement that subsisted between the local Health Board and FFRS. Indeed the tenor of Mr Sheach's evidence was that the inspection regime had been in place long before the 1997 Regulations were passed. Mr Sheach continued to work for FFRS until 2002.
115 Mr Todd's evidence was that, even after 1999, the process of enforcement was variable. It was a matter for the individual fire authorities to determine the priorities in their area. Sir Graham Meldrum's evidence, albeit of limited scope, was to similar effect.
116 Each of Mr Russell, Mr Adie, Mr Ord and Mr Sweeney expressed the view that the institution of a major new system of inspection would have had resource implications. Yet the terms of the guidance were to the effect that no additional burden in terms of resources was anticipated and, according to Mr Adie no additional allocation of resources was made.
117 The effect of Mr Russell's evidence was that, while there had been, from the outset, no inspection programme for nursing homes under the 1997 Regulations Fire and Rescue Services had been working towards that result. Just how far they had gone was, and is, unclear.
118 SF&R, like other fire and rescue services were the subject of inspection by HM Fire Inspectorate. The evidence of Mr Stewart was to the effect that the approach taken by SF&R could not be criticised. The factors that appear to have been of weight were (i) the giving of a letter of goodwill at the time of registration, and (ii) the existence of another regulator. Mr Stewart also drew attention to the practical implications for a Fire Service in the position of SF&R of instituting any major new regime of inspection.
119 If Rosepark had been the subject of inspection by a fire safety officer pursuant to regulation 10 of the 1997 Regulations it is probable that either (i) the absence prior to 6 January 2003, of a premises risk assessment, or (ii) the deficiencies in Mr Reid's risk assessment would have been noticed. That there was no such inspection is clearly a circumstance relevant to the fire at Rosepark.
120 However, the evidence makes it unsafe to conclude that the absence of any system of inspection amounted to a defective system of working. Were the position to be otherwise one would have expected HM Inspectorate immediately to have identified the deficiency and required remedial action to be taken. It is, however, emphasised that this conclusion should not be taken to mean that, for firefighting purposes, there was no justification for ascribing to Rosepark a higher risk catagorisation for the purposes of securing more frequent familiarisation visits by the local fire station (as is now required by the terms of Operational Technical Note A124[4445]). At least until 2002 statutory responsibility for the regulation of fire safety in nursing homes was clear, detailed and unambiguous. Fire safety should have been the subject of inspection by the Health Board at Rosepark, whatever view of risk was being taken by SF&R. There was, however, no authority other than SF&R which had any interest in familiarisation with the premises for operational firefighting reasons. The difference between the two situations may be illustrated by the fact that what appears, principally, to have advised the view that nursing homes did not represent a high fire risk for the purposes of the 1997 Regulations was the absence of historical evidence of fires or fatalities at such premises. Familiarisation, however, is not concerned with the likelihood of fire. It is concerned with securing, so far as possible, that when there is a fire (however unlikely) the attending firefighters are familiar with the layout of the premises, the sleeping risk and inter alia their means of access to the premises[4446]. The distinction may be a fine one, but it is an important one.
121 The submissions by SF&R merit some comment on the statutory framework relating to regulation and enforcement of fire safety in nursing homes.
122 The Crown understands that it was the HSE which had general responsibility for the enforcement of the Management Regulations in relation to a nursing home such as Rosepark. However, Regulation 9 of the 1997 Regulations disapplied the enforcement regime of the Health and Safety at Work etc. Act 1974[4447] to the workplace fire precautions legislation to the extent that Fire Authorities were given enforcement responsibility under regulation 10 of the 1997 Regulations[4448]. It follows that the enforcing authority in relation to what is termed "the workplace fire precautions legislation"[4449] was the Fire Authority[4450].
123 It is submitted on behalf of SF&R that its enforcement obligations under both the 1997 Regulations and the 1999 Management Regulations extended only to employees as opposed to non employees. Although not specified, it is assumed that reliance is placed upon the terms of regulation 9(2) of the 1997 Regulations (as amended)[4451], and, in particular, the words "in relation to the risk to the safety of employees in case of fire in the workplace" in the definition of "general fire precautions" in that regulation.
124 It is submitted that the interpretation placed upon regulation 9(2) by SF&R is too narrow. The measures to be taken by the employer were not in respect of the risk to the safety of employees, but rather in relation to that risk. It is submitted that measures to be taken under the 1997 Regulations, in respect of a nursing home, would necessarily encompass measures designed to secure, broadly, the safety of residents in the nursing home since their safety and welfare would inevitably, for reasons explained by Mr. Todd (and evident from the evidence as a whole) impact on the risk to which employees would be exposed in the event of fire. Such was the approach taken in the judgment in Tesco Stores Limited v Greater Manchester Fire Authority[4452] under reference to regulation 5(2)(f) of the 1997 Regulations.
125 It is plain from the terms of both the 1997 Regulations and the 1999 Management Regulations that the emphasis is on workplaces, and the safety and health of employees. This is scarcely surprising. The 1997 Regulations gave effect in Great Britain to (a) article 8(1) and (2) of Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work[4453], and (b) article 6 of, together with paragraphs 4 and 5 of each of the annexes to, Council Directive 89/654/EEC, concerning the minimum safety and health requirements for the workplace[4454], in so far as those provisions related to fire precautions and in so far as more specific legislation did not make appropriate provision[4455]
126 As far as matters of fire safety in nursing homes are concerned more specific legislation did, in fact, make provision for non employees. That legislation was the Nursing Homes (Registration) (Scotland) Act 1938, and the Nursing Homes Registration (Scotland) Regulations 1990. The terms of the 1990 Regulations, in particular, were explicit about the duties and responsibilities of both the person registered and the Health Board in respect of fire safety. Subsequently, legislation made provision for the establishment of a new regulator, the Care Commission. It was at that point that the standard of regulation might be said, perhaps unintentionally, to have been loosened[4456].
127 Thus, responsibility for the regulation of fire safety in nursing homes was conferred on Health Boards (under the 1938 Act and the 1990 Regulations), and subsequently the Care Commission (under the 2001 Act and the 2002 Regulations, and national care standards). Responsibility for enforcement of the workplace fire precautions legislation, as defined in regulation 9(2) of the 1997 Regulations, rested with the Fire Service. That responsibility extended to non employees to the extent, and for the reasons, set out above[4457].
128 As discussed in chapter 46(6) fire safety enforcement under the Fire (Scotland) Act 2005 is now a matter where responsibility lies squarely with the Fire Service.
CHAPTER 46(2) - Statutory Responsibility for fire safety: Care Commission and Strathclyde Fire and Rescue understanding of their respective roles
This chapter considers the evidence bearing upon the understanding of the Care Commission about the role of Fire and Rescue Services in matters of fire safety in care homes, and also the evidence bearing upon the understanding of Strathclyde Fire and Rescue as regards the role of the Care Commission in relation to those matters. Chapters 27 and 46(1) set out the evidence bearing upon the relevant legislation and their approach to inspection of care homes.
The Crown proposes, under section 6(1)(e) of the 1976 Act, that the following facts were relevant to the circumstances of the deaths:
1. Regulation and enforcement of fire safety in care homes at the time of the fire at Rosepark was fragmented.
2. The Care Commission's knowledge of the role of Fire and Rescue Services in relation to fire precautions in care homes, and vice versa, was characterised by a lack of clarity.
3. The product of this lack of clarity was a situation in which the absence of, or deficiencies in the premises risk assessment at Rosepark, and the arrangements for dealing with a fire alarm sounding at night, were unlikely to have been identified at the time when the fire occurred.
The understanding of the Care Commission and Strathclyde Fire and Rescue
1. The evidence relating to the aftermath of the fire revealed uncertainties about the roles of the Care Commission and SFRS in matters of fire safety.
2. It was the understanding of Jacqueline Roberts that there had been contacts between the Care Commission and Fire and Rescue Authorities, in particular the Chief Area Fire Officers' Association, before the fire[4458].
3. Mrs Roberts' understanding was that the Fire Service took on responsibility for undertaking regular fire safety inspections in care home services after the end of January 2004. She was advised by representatives of the Fire Service after the fire that this did not happen consistently across all fire services before January 2004. Mrs Roberts understood that Fife Fire and Rescue were inspecting care homes once per year[4459]. Only after the Care Commission was up and running did it gradually become apparent that practices varied[4460]
4. Ronald Hill's understanding of the position of the Fire Brigade, prior to the fire, was that some kind of inspection regime existed in respect of care homes but he was unaware of its regularity or its legislative basis. Ultimately Mr Hill appeared to accept that, after registration, inspection of care homes by the Fire Service was likely to have arisen as a result of a request[4461]. His understanding, though, was that the primary agency responsible for fire safety was the Fire Brigade[4462]. The appointment of Alan Sheach as a fire safety advisor after the fire represented a recognition that it would be helpful to have a closer dialogue between the Care Commission and the Fire Service[4463].
5. Annabel Fowles, the Head of Legal Services at the Care Commission, stated that it was her view that very little had changed from the system of regulation by the Health Boards when the Care Commission came into being. In advising the Care Commission she took the view that fire safety involved no more than checking that maintenance records were up to date and that fire drills were being carried out and documented. In terms of systematic inspection of fire safety standards, that was not something that the Care Commission had the staff or training to do[4464]. Conversely, her understanding was that the Fire Services would be inspecting nursing home accommodation in conjunction with local authorities or health boards. The legal basis for this understanding does not appear to have been a matter that Mrs Fowles investigated[4465].
6. As discussed in chapter 27, however, the reference, in section four of the Care Commission pre-inspection return document, to "the last Fire Brigade inspection" was a reference to an updated goodwill report by the Fire Brigade[4466]. Miss McHaffie was unsure what the Fire Brigade's role in relation to care homes was[4467], while Mrs Paterson did not think that the Fire Service had any ongoing role after registration[4468].
7. As far as SFRS were concerned the position in the evidence was this. Jeff Ord, the Firemaster between 1999 and 2004, was unsure whether the Care Commission understood the basis upon which SFRS approached enforcement of the Fire Precautions (Workplace) Regulations 1997[4469].
8. However, it was his understanding that Care Commission inspectors were examining matters of fire safety in care homes. He thought that they had a responsibility for fire safety in care homes and for the registration of premises, which itself included compliance with safety, including fire safety[4470]. That understanding was derived from discussions with senior officers within SFRS[4471]. It was also Mr Ord's expectation that the inspectors would have had a substantial knowledge of fire safety issues in the form of a vocational qualification in generic risk assessment (which would include fire) or at least internal qualifications and evidence of training[4472].
9. Hugh Adie's understanding was that the Care Commission had the same role in relation to the inspection of matters of fire safety as had the Health Boards[4473]. At the time it came into being Mr Adie (then Deputy to the Assistant Firemaster, Community Safety[4474]) had no information about the nature of the registration process and where responsibilities in relation to fire safety were to fall[4475]. His understanding that the Care Commission had the same role as the Health Boards was one which was derived from Care Commission officers after the Care Commission had started[4476].
10. In reality there was, according to Mr Adie, little understanding within SFRS on 1st April 2002 of the functions of the Care Commission and its responsibilities[4477]. There had been no communication from the Scottish Government to the effect that care homes were no longer going to be regulated by the Health Boards[4478]. It took a considerable period of time, perhaps 12-18 months, for formal procedures to be put in place that would allow the registration process to carry on as before[4479].
11. Precisely why it took until September 2005 before a Memorandum of Understanding between the Care Commission and SFRS was not resolved in the evidence. Mrs Roberts referred to the short lead in time before the Care Commission started up and how a longer time might have allowed for the preparation of memoranda of association[4480]. John Russell recalled an initial meeting in Paisley about 6-9 months after the start of the Care Commission[4481]. Jeff Ord spoke in the most general terms about an absence of concern expressed by his staff about the Care Commission's inspection regime and some liaison at an operational level[4482].
12. In reality there were no arrangements regulating the relationship between the Care Commission and SFRS[4483] before the fire, and it was the fire that gave impetus to that process[4484]
13. It is reasonable to conclude from the evidence that at the time of commencement of the Care Commission in April 2002 neither SFRS nor the Care Commission had a clear understanding of the role of the other relative to the inspection of matters of fire safety.
CHAPTER 46(3) (formerly 40(3)): CERTIFICATE OF COMPLETION: THE POSITION OF THE ARCHITECT AND BUILDING CONTROL AUTHORITY
It is a fact relevant to the circumstances of these deaths that a certificate of completion was issued in circumstances where there had been a serious failure to comply with Building Regulations (in respect of the omission of fire dampers).
1. There was a serious failure to comply with Building Regulations, by reason of the omission of fire dampers. Nevertheless, an application was made for a completion certificate by Mr. Dickie, and a completion certificate was issued by the building authority.
The Architect
2. Mr. Dickie (whether himself or through his employee) should not have applied for the completion certificate. He had been engaged on a plans only basis. He had not been involved in periodic inspection. In those circumstances he did not have a proper basis upon which he could assert to the building control authority that the building had in fact been completed in accordance with the Building Regulations and the terms of the warrant[4485].
3. It would not, however, be appropriate to identify as a "reasonable precaution" a process of inspection by the architect before issuing such an application. Mr. Spencely's evidence was that an inspection at the end of the project by an architect who had not undertaken periodic inspection while the work was ongoing would not be a sufficient basis for issuing such an application[4486].
4. The only reasonable precaution which might have been taken in the circumstances would have been for Mr. Dickie to decline to make the application at all. This would not have prevented an application being made. If Mr. Dickie had not been prepared to make the application, there would have been no bar to Mr. Balmer himself making the application.
5. Mr. Sorbie's basic position was that, although it might add weight to an application that it had been signed by an architect, this circumstance should not make any difference to the approach taken by the building control officer in fulfilling his own responsibility of assessing an application for a completion certificate[4487]. This was corroborated to some extent by Mr. Spencely's experience[4488].
6. Mr. Gibb, the building control inspector, on the other hand, did place weight on the fact that the application had been presented by an architect. He said that if an application had been made by Mr. Balmer himself he would wonder "that the architect wasn't involved in the project at all"[4489]. He went on to say that if the architect informed you that the works were being completely supervised by the owner of the building himself, "you may decide ... and I can only say may ... you may decide that you would try and do more inspections if you could"[4490]. And he went on to say, when asked whether it would have affected him if he had understood that the architect had provided a plans only service: "I don't really think so. ... I think inspection is affected by what problems and what issues you are finding on site, more than directly who in some respects is supervising"[4491].
7. In these circumstances, the Crown does not seek a determination under the other heads in respect of the role of the architect.
Building control
1. In terms of the relevant legislation the local authority was enjoined to grant a completion certification if "so far as they are able to ascertain, having taken all reasonable steps on that behalf, they are satisfied that the building complies with the conditions on which the relative warrant was granted".
2. What steps were "reasonable" was not further defined. There was no prescribed level or number of inspections which required to be made[4492]. The final inspection itself would normally be a walk-through non-disruptive inspection, with the detail of the inspection affected by such matters as the prior involvement of the inspector with the building and other such considerations[4493]. No criticism falls to be made of the number of inspections undertaken by Mr. Gibb of this particular building[4494]. Nor could he be expected to inspect every location where there might be a damper, or, indeed, for every potential breach of the Building Regulations. The building control inspector does not perform the function of a clerk of works[4495].
3. Furthermore, there is scope for professional judgment as to whether any particular inquiry is a necessary one. While Mr. Sorbie would himself have regarded it as a reasonable to make inquiry in relation to fire dampers, he would not be critical of a building control inspector who took a different view[4496]. Ultimately, he was not prepared to say that the building authority in this case had failed to take all reasonable steps. One requires to be mindful that the Building Regulations impose requirements as regards many matters not all of which can be the subject of inspection.
CHAPTER 46(4) - CHECKING OF DOCUMENTATION
It is a fact relevant to the circumstances of these deaths that there had been no external check for documentation vouching: (a) the testing and inspection of the electrical installation; or (b) the testing and inspection of the ventilation system.
1. It is apparent from the evidence that, in a well-run Home, the maintenance of key features of the building which have an important bearing on fire safety will generate documentation. In particular:
a. The testing and inspection of the electrical installation will generate documentation associated with that.
b. The testing and inspection of the ventilation system, and fire dampers, should generate documentation.
2. The very fact that there was no such documentation indicates that no one external to Rosepark was checking (or adequately checking) for such documentation.
3. The Care Regulators had been looking at electrical maintenance contracts, but their concern was more that there should be adequate emergency cover than with the question of whether the system was being properly maintained. Mr. Todd suggested that it would be desirable for the Care Regulator to check such documentation vouching the testing and inspection of the electrical installation, on the basis that this Regulator would regularly be visiting and inspecting the Home. But he recognized that the primary responsibility for enforcing the Electricity at Work Regulations lies with the HSE and, further, that fire safety is not dealt with by the Care Commission. The Care Commission is also to be replaced[4497]. Mr. Todd agreed with the proposition, though, that the important thing is that this should be done by someone[4498].
4. The Crown acknowledges that this is an issue which should be addressed in the context of a suitable and sufficient risk assessment. Nevertheless - and whether or not the fire was caused in the manner identified in these submissions - the evidence in this inquiry did disclose an issue which the relevant regulators (i.e. the HSE, the Fire Authorities and the successor to the Care Commission) might be invited to consider. it would be desirable, it is submitted: (a) that there should be clarity as between the potential regulators as to what each of them is doing in this regard; and (b) that relevant inspectors should have instruction at least as to the nature of the documentation which they should expect to see.
CHAPTER 46(5) - ASSURANCE AS TO THE COMPETENCE OF FIRE RISK ASSESSORS
It is a fact relevant to the circumstances of the deaths that there was at the time of the fire no statutory requirement as regards the qualifications of persons who provide services in connection with the risk assessment of Care Homes.
1. Having regard to the fundamental importance of the process of fire risk assessment in securing fire safety, it is of the utmost importance that the process is a robust one.
2. Legislation does not prescribe that persons who hold themselves out as competent to assist duty-holders with fire risk assessments have any particular qualification or experience to do so[4499]. This is of a piece with the thrust of legislative policy that, in many types of premises, the process can be undertaken by a lay duty-holder.
3. Care homes present two special features:
3.1. They are exceptionally challenging in fire safety terms.
3.2. They typically house vulnerable individuals who are entitled to a measure of protection.
4. Mr. Reid held himself out as giving health and safety advice, and was prepared to undertake a risk assessment at Rosepark. With the benefit of hindsight, Mr. Reid very candidly accepted that he was not, in fact, qualified by experience or training to undertake the particularly difficult exercise of a fire risk assessment at Rosepark.
5. Mr. Reid had a health and safety qualification (a NEBOSH General Certificate), was a member of a relevant association, and had undertaken some training specifically in fire risk assessment. These were not, in fact, sufficient to fit him for the particular challenges of risk assessing a home such as Rosepark[4500]. However, it might have been difficult for a lay duty-holder to come to a view that he was not someone who could safely be engaged to assist the duty-holder with a fire risk assessment.
6. The circumstances of this inquiry accordingly illustrate that in the specific context of fire risk assessments of residential care homes, there may be a case for a more prescriptive approach to be taken to the question of the qualification of persons who are engaged by duty-holders to assist. This could be justified: (a) by the particular difficulties attendant on fire risk assessment of such premises; and (b) the legitimate public aim of protecting vulnerable residents.
7. An alternative approach, short of statutory regulation, would be the use of third party accreditation schemes, with appropriate support being given to the importance of using accredited assessors in non-statutory guidance to those responsible for running Care Homes and in the actions of regulators[4501]. The inquiry heard evidence that there are now registration or accreditation schemes for fire risk assessors run by four bodies (all but one of them post-dating the fire at Rosepark), and that the industry is actively engaged in developing third party certification schemes[4502].
8. A similar point might be made about those who provide, install and maintain key protection systems such as fire alarm systems. There are already available third party certification schemes for such providers[4503].
CHAPTER 46(6) (Formerly 40(6) - DEVELOPMENTS SINCE THE ROSEPARK FIRE
In chapter 46(6)(A)-(F) consideration is given to developments following the fire, including changes in fire safety and building control legislation, the operational practices of Strathclyde Fire and Rescue and Rosepark Care Home, and recommendations of Mr Colin Todd.
Since the fire at Rosepark Care Home, there have been a number of significant developments upon which the inquiry heard some evidence. In particular:-
(a) At the instigation of the Scottish Ministers, a process of advisory visits by Fire Services to Care Homes throughout Scotland was instigated following the fire[4504].
(b) Memoranda of Understanding were, in 2005, entered into between the Care Commission and the eight Fire and Rescue Authorities in Scotland[4505].
(c) Strathclyde Fire and Rescue issued Operational Technical Note A124, in response to certain recommendations which had been made by Sir Graham Meldrum following the fire at Rosepark Care Home[4506].
(d) The legislation in relation to fire safety which had been in place at the time of the fire was replaced by a comprehensive new legislative framework, in the Fire (Scotland) Act 2005[4507].
(e) Changes were made in the relevant Building Standards Regulations (which had already by the time of the fire moved on substantially as compared with the Building Standards Regulations which had applied at the time when Rosepark was built)[4508].
(f) At Rosepark Care Home itself, a number of changes were made in light of the experience of the fire[4509].
(g) In the course of the inquiry, Colin Todd made a number of recommendations. In the course of cross-examination of Mr. Todd, the Scottish Ministers indicated that they accepted some (though not all) of those recommendations[4510].
CHAPTER 46(6)(A) - DEVELOPMENTS SINCE THE ROSEPARK FIRE -
THE IMMEDIATE AFTERMATH
1. The fire set in train a process of advisory visits by the Fire and Rescue Authorities to care homes throughout Scotland. These visits were instructed by the Minister, Cathy Jamieson[4511]. These visits proceeded on letters of authorisation from the Care Commission[4512]. These were prepared because Strathclyde Fire and Rescue ("SF&R"), in particular, questioned whether it had power to enter care homes which did not require a fire certificate. At Annabel Fowles' suggestion letters of authorisation were drafted as a means of overcoming the problem[4513].
2. Fire Brigades required to make returns to the Scottish Executive detailing the number of homes visited and reporting any concerns in an "exception report"[4514]. Reports were submitted on a fortnightly basis detailing the number of visits and the extent of any "exceptions". Not many exceptions reports were returned[4515]. The advisory visits were carried out by a mix of fire safety officers and operational crew[4516].
3. One matter that appears to have emerged from the advisory visits concerned bedroom doors. Graeme Fraser was involved in responding to correspondence raising concerns about individual bedroom doors being closed over at night. The concerns were around the impact closing doors and on quality of life. Mr Fraser spoke to a joint statement having been issued by Jacqueline Roberts and Jeff Ord (then HM Chief Inspector) on the necessity for a balance to be struck between quality of life and safety. The original advice was probably issued by the Fire Services after the advisory visits. The thrust of the statement was that the doors needed to be closed, but there were ways in which a door could remain and close in time of emergency (Mr Fraser mentioned swing free door closers). So operators should look at the practices they wished to put in place to ensure that the doors could remain shut at night or be closed in an emergency[4517].
4. In February 2005 Alan Sheach was seconded from HM Inspectorate to the Care Commission. The purpose of his secondment was to provide strategic fire safety advice to the Care Commission and to ensure that the Care Commission was fully informed of any fire safety issues nationally[4518]. His appointment would facilitate closer dialogue between the Care Commission and the Fire and Rescue Authorities[4519].
5. Mr Sheach was the first fire safety adviser to be appointed by the Care Commission[4520]. There was no one at the Care Commission who had specific experience and knowledge, at strategic level, of fire legislation and fire safety[4521]. Mr Sheach's role also included the development of a Memorandum of Understanding with the Fire and Rescue Authorities, and following up on action plans arising from the advisory visits by the Fire Services which had been instituted after the fire at Rosepark[4522].
6. The Care Commission inspectors were not fire safety experts. The expertise lay with the Fire Services[4523].
7. Mr Sheach was responsible for preparing the aide memoire for Care Commission officers. It was an interim measure until the anticipated new legislation was introduced[4524]. Mr Sheach anticipated that that legislation would clarify where responsibility lay in terms of inspecting for fire safety[4525]
8. Even after the fire, there was discussion involving the Mr Sheach, on behalf of the Care Commission, and the Chief Fire Officers' Association about where responsibility lay for inspecting matters of fire safety[4526]. Mr Sheach's concern was to avoid a fire similar to the one at Rosepark. Since Care Commission inspectors were going into Care Homes on a regular basis the aide memoire would help them to focus on the key issues they should be looking at[4527].
9. Mr Sheach's impression was that prior to the completion of the aide memoire Care Commission officers were inspecting log books, ensuring that training was being done, checking for fire alarm tests and looking for evidence that fire extinguishers were being maintained[4528].
10. Mr Sheach explained that, while his impression was that these things were being done, it was an entirely different matter to understand the importance of many of the fire safety procedures and built in fire protection measures in the Home. Before the aide memoire was finalised Mr Sheach delivered fire safety lectures to staff and found that there was a need for them; they generated many hours of discussion, and Mr Sheach recognised the need to introduce the aide memoire to make sure that everything was being covered[4529]. Inspectors had been looking at records but not drilling down underneath their contents[4530].
11. Conversely, fire safety and fire risk assessments represented the bread and butter of a fire safety officer's work. Indeed, to interpret a fire risk assessment it is necessary to have a good grounding in fire safety. Since Care Commission officers were not fire safety experts it was not their role to interpret the action plans derived from the post fire advisory visits. That was the role of the Fire Services[4531].
12. Mr Sheach was closely involved in the preparation of the Memoranda of Understanding between the Care Commission and Fire and Rescue Authorities, including the Memorandum executed by SF&R[4532]. The purpose of the Memoranda was to clarify the relationship between the parties, when the Fire Services would inspect care services or give opinions on fire safety in care homes, and to ensure that there was close cooperation and mutual understanding between the parties on fire safety matters[4533].
13. Memoranda of understanding were entered into between the Care Commission and the 8 Fire and Rescue Authorities in 2005. The memorandum in respect of SF&R was signed by Mrs Roberts on 13th September 2005[4534].
14. The purpose of the Memoranda of Understanding was to make absolutely clear the roles and responsibilities of the Fire and Rescue Services, and to make as clear as possible the understanding between the two bodies. Work had started on the memoranda in 2002. The fire at Rosepark added impetus to the process of getting the memoranda signed[4535]
15. Appendix 4 dealt with the agreed arrangements. In respect of applications for new registration SF&R undertook to inspect the premises and report on their findings both to the applicant and to the Care Commission. A Fire Safety Officer would be required to comment on the care service's fire risk assessment[4536].
16. On page 16 of the Memorandum important provision was made in respect of fire safety inspections and specific fire safety concerns. SF&R agreed to undertake fire safety inspections in all care home services, the regularity being determined by a process of risk assessment of each service. The inspection process was not limited to services in respect of which concerns had been raised by the Care Commission[4537]. It was a new programme of inspection which was proactive, not reactive, and involving inspection with the permission, and at the invitation, of the Care Commission[4538].
17. The advisory visits instructed by the Minister had already occurred by the time the Memoranda were signed[4539]
CHAPTER 46(6)(B) (Formerly 40(6)(b)) - DEVELOPMENTS SINCE THE ROSEPARK FIRE -
STRATHCLYDE FIRE AND RESCUE ("SF&R")
During the Inquiry the Chief Officer of SF&R, Brian Sweeney, gave evidence under reference to Operational Technical Note A124, issued by SF&R, about the operational changes and developments which have occurred since the fire at Rosepark. There follows a rehearsal of the evidence in connection with these matters, including the recommendations of Sir Graham Meldrum arising from his consideration of the circumstances of the fire, and Mr Sweeney's explanation of the terms of the new guidance.
1. The recommendations of Sir Graham Meldrum
1. In his report of August 2006[4540] Sir Graham Meldrum set out, in appendix 3, certain recommendations in light of his examination of the facts and circumstances of the Rosepark fire, and his experience of other fire incidents[4541].
2. Sir Graham recommended that Rosepark should be considered a large residential care home for the purposes of Operational Technical Note No. A6[4542] ("OTN A6"), and that the risk rating for such premises be reviewed such that consideration be given to treating establishements such as Rosepark as "special risk" for the purposes of OTN A6[4543].
3. Sir Graham invited consideration to be given to increasing the size of the pre-determined attendance at large residential care homes to 3 appliances[4544].
4. Sir Graham recommended that the additional information contained in the turn-out slip, an example of which was production 928, be displayed in a more prominent manner[4545].
5. Arising from the experience of a fire incident at St David's Nursing Home, Redcar, in 2004, Sir Graham recommended that SF&R give consideration to the following matters: (i) the national incident command procedures should ensure that an evacuation officer is appointed where appropriate, and (ii) a system of marking doors to indicate that a room had been searched should be implemented. Sir Graham thought that a tally capable of being hooked onto a door handle would be a way forward, although the circumstances of a severe fire meant that it could not be a perfect solution[4546].
6. Sir Graham also recommended that training of officers for incident command should emphasise the need to request adequate resources as soon as possible. Sufficient resources should always be available to ensure the safety of firefighters wearing BA, and a emergency team should be available to respond to distress signals received from the BA wearer[4547]
2. Operational Technical Note A124
7. In the course of giving evidence the Chief Officer of SF&R, Brian Sweeney explained the purpose and contents of Operational Technical Note No. A124 ("OTN A124")[4548]. OTN A124 was produced by SF&R in response to the recommendations made by Sir Graham[4549].
8. OTN A124 was issued in December 2008. It is concerned with responding to incidents in residential homes[4550]. It was the first technical note dealing specifically with residential care homes[4551].
9. OTN A124 lays down procedures for pre-planning and the gathering of operational intelligence[4552]. Within section 2 of OTN A124 provision is made for the establishment of a programme of visits to all care homes involving all watches for the purpose of gathering operational intelligence and formulating an emergency response plan[4553]. In relation to operational intelligence paragraph 2.1 of the guidance states that operational staff should make themselves familiar with the premises' risk assessment[4554]. The emergency response plan, a style for which is contained in appendix A of OTN A124, would be available on the VMDS system[4555]. The response plan contains information about access, types of residents and water supplies[4556] .
10. It is provided in paragraph 2.4.1 of OTN A124 that "[E]ach watch should visit each care home, within their station area, and familiarise themselves with the response plans at least once in every calendar year. All response plans should be promulgated to supporting stations; all watches in these stations must also be made aware of the current operational intelligence and response plans. Where practicable supporting stations should consider joint visits with the local station."[4557]. Where SF&R has changed the duty system from, essentially, a four to a five watch system, each watch will now visit each care home in the station area annually[4558]
11. In October 2007 the matter of pre-determined attendance at residential care homes was resolved in favour of an attendance of three appliances as an operational minimum[4559].
12. Since there should be no dubiety about what the appropriate access to premises involved in an incident is, the incident response plan should have determined the designated access point or points[4560].
13. Section 3.2 of OTN A124 emphasises the importance of staff contact and the obtaining of as much information as possible about (i) the nature of the incident; (ii) whether a roll call had been completed; (iii) whether any evacuation had been initiated or completed; (iv) whether there were high dependency residents involved; (v) the whereabouts of suitable havens for progressive evacuation, and (vi) any specific hazards. Particularly the first four of these matters had a direct resonance with the fire at Rosepark[4561].
14. Paragraph 3.2.1 states that "[In] all instances where fire is suspected or when responding to an alarm actuation the alarm panel must be consulted to establish the zones involved within the building." This emphasizes that one key step for an incident commander to take, in addition to consulting with care home staff, would be to check the alarm panel and find out the location of the fire. The location of the fire would determine the incident commander's operational actions thereafter[4562]. If the indication on the panel was that the detector had activated in an area other than where smoke had been observed by staff the incident commander would have to take both pieces of information into account in formulating his tactical plan[4563].
15. Section 4 of OTN A124 is concerned with the incident command system. Guidance is given on the approach to resourcing and the recording of dynamic risk assessment at an incident. In respect of resourcing in particular the guidance states that early consideration should be given to the scale of an incident and the resources that will be required, in particular where a large scale evacuation/rescue of non-ambulent residents may be required[4564]. This part of the guidance was advised by the experience of the fire at Rosepark[4565]
16. Mr Sweeney gave evidence about a new system of resourcing an incident. Where formerly it was left to the judgement of the incident commander how many additional appliances to call to an incident, the new system is one which involves different levels of response. Thus Level 1 would represent the predetermined attendance. If additional resources were sought that would be done by the officer in charge seeking a Level 2 attendance. A level 2 attendance would be the equivalent, in the case of Rosepark, to making pumps 6. This new system is part of a UK wide system of incident command and was not necessarily introduced as a result of the fire at Rosepark[4566].
17. In section 5, on evacuation, there is a statement that "emergency evacuation is the responsibility of the care home management and cannot be delegated to the Fire and Rescue Service". This should be understood to mean that a care home owner cannot simply rely on the Fire Service to deal with evacuation. An evacuation should be initiated, and, depending on conditions, will be completed either with the Fire Service or by the Fire Service alone[4567]. The guidance calls for the appointment of an roll call officer to coordinate evacuation. This accords with Sir Graham Meldrum's recommendation of the designation of an evacuation officer[4568]
18. Sir Graham Meldrum prepared a report with comments on OTN A124[4569].
19. Sir Graham suggested that some thought be given by SF&R to the possibility of adding an appendix to OTN A124 containing a list of the type of questions to be asked of care home managers at incidents[4570]. It is unnecessary for any direction to be made in that respect. It is, no doubt, a matter which can be considered by those charged with reviewing guidance within SF&R.
20. The only particular area of concern about OTN A124 related to evacuation, and the reference to emergency evacuation being the responsibility of care home management. Sir Graham's concern was that the impression was left that fire officers would be taking instructions in evacuation from care home staff[4571]. The section of OTN A124 most nearly concerned is derived from "Practical Fire Safety Guidance for Care Homes" at paragraph, page 19, paragraph 75[4572]. Sir Graham considered that this was a matter requiring clarification in both OTN A124 and the Practical Fire Safety Guidance[4573].
21. Mr Sweeney did not share the concern. It was a matter of common sense. The guidance and OTN A124 reflected the reality which is that the staff must initiate an evacuation (and not wait on the Fire Service arriving), and conduct it until the fire service arrive. It would obviously be for the Fire Service to evacuate residents from smoke filled areas[4574]. There is, perhaps, an infelicity in the wording cannot be delegated. It is no doubt a point that can be considered by those responsible for the guidance, and those charged with reviewing guidance within SF&R.
22. The suggestion by Sir Graham that tallies be deployed did not meet with Mr Sweeney's agreement. No satisfactory solution had been found[4575]. Ultimately it is a problem for the Fire Service to resolve.
23. In the circumstances it is apparent that significant changes have occurred since the fire in relation to (i) pre-determined attendance; (ii) planning for, and frequency and content of, familiarisation; (iii) guidance about the use of fire alarm panel information and information gleaned from care home staff at an incident, and (iv) the approach to resourcing incidents at residential care homes. The terms of the guidance in OTN A124 substantially address the areas of concern raised by Sir Graham Meldrum arising out of his examination of the operations of SF&R at Rosepark on 31st January 2004.
CHAPTER 46(6)(C) (Formerly 40(6)(c)) - DEVELOPMENTS SINCE THE ROSEPARK FIRE - THE FIRE (SCOTLAND) ACT 2005, ITS REGULATIONS AND ITS CONSEQUENCES
1. Summary of the Legislative Position prior to the enactment of part III of the Fire (Scotland) Act 2005
1. The regulation and enforcement of fire safety in care homes at the time of the fire at Rosepark was fragmented. The need for reform had been recognised prior to the fire at Rosepark.
2. The Nursing Homes (Registration) (Scotland) Act 1938 had been repealed and the Nursing Homes (Registration) (Scotland) Regulations 1990 revoked in favour of a less prescriptive regime of fire safety regulation organized under the auspices of the Care Commission. The circumstances of how that occurred are explained in chapter 27. The Care Commission's regime of inspection, although regular, was not calculated to identify significant breaches of fire safety.
3. Enforcement of the Fire Precautions (Workplace) Regulations 1997 was entirely dependent on a risk based approach which determined the premises that would attract inspection. At least in Strathclyde, care homes were not being inspected at all at the time of the fire. The reasons for that are explored in chapter 46(1)
4. Section 10 of the Fire Precautions Act 1971 authorised Fire and Rescue Authorities to seek a prohibition or restriction on the use of premises involving excessive risk to persons in case of fire (itself a remedy of last resort, as explained in chapter 40(2)). That section apart, the situations which would have caused Strathclyde Fire and Rescue Service ("SFRS") to be at a care home prior to the fire were (i) in the context of section 1(1)(d) visits or the giving of advice under section 1(1)(f) of the Fire Services Act 1947; (ii) a situation where an issue of concern has been raised direct by a third party; (iii) at the request of the regulator (in which case SFRS would inspect), and (iv) at the invitation of the owner of the care home[4576]
5. At the time of the Rosepark fire, the organisation charged with regulating fire safety in care homes did not have the experience to do so adequately. In respect of Rosepark the organisation which did have that expertise, Strathclyde Fire and Rescue, was not inspecting care homes routinely.
1. The legislative history of the Fire (Scotland) Act 2005
1. Since October 2003 Joanne Macdougall has been employed by that part of the Civil Service in Scotland known as Scottish Resilience (formerly the Fire and Civil Contingencies Division within the Department of Justice of the Scottish Government)[4577].
2. Scottish Resilience is the point of liaison between Ministers of the Scottish Government and the emergency services. It provides a forum for discussion on matters of policy. Its members work on legislation affecting the emergency services. One such example was the Fire (Scotland) Act 2005[4578].
3. After taking up her duties with Scottish Resilience in October 2003 Miss Macdougall joined a small team working on drafting the Bill which ultimately became the Fire (Scotland) Act 2005[4579].
4. It follows that new fire safety legislation was in contemplation before the fire at Rosepark in January 2004. Indeed the first consultation relative to new legislation was launched by the Scottish Executuve in early 2002. Legislation was being looked at across not just Scotland but also England and Wales[4580].
5. The policy objectives underlying the new legislation derived from a recognition that the role of Fire Brigades had developed from the time when they only fought fires. There was a desire to recognise the broader role of Fire Services in statute and also to make community fire safety a statutory responsibility of the Fire Services[4581].
6. There was, further, a desire to revise fire safety legislation which, Miss MacDougall said, was very fragmented. Hitherto there had been the Fire Services Act 1947, the Fire Precautions Act 1971, and the Fire Precautions (Workplace) Regulations 1997. The Fire (Scotland) Bill would also give strategic objectives to the Fire Services[4582]. According to Miss MacDougall the government had come under some criticism for not having given strategic direction to the Fire and Rescue Services (following a review by Professor Sir George Bain). The aim was that the enforcement duties in the Fire (Scotland) Bill would be clearer about what Ministers were expecting from enforcing authorities[4583]
7. Miss Macdougall remained on the Fire Bill team as the legislation was taken forward towards implementation[4584].
8. The approach to enforcement of the fire safety duties in part III of the 2005 Act was one which, as will be seen, was based on risk profiling of premises and activities subject to the new legislation. Miss MacDougall understood that this reflected the approach under health and safety legislation hitherto, and in particular the Fire Precautions (Workplace) Regulations 1997[4585].
2. Part 3 of the Fire (Scotland) Act 2005 ("the 2005 Act")
9. Section 8 is concerned with the obligation of fire authorities to promote fire safety in their area. It contains a new statutory duty in connection with the giving of information, publicity and encouragement in respect of the steps to be taken to prevent fires, and death or injury by fire (known as Community Safety and Community Safety Education[4586].
10. Section 9 is concerned with fire-fighting, and arrangements pursuant to extinguishing fires and protecting life and property in the event of fire. Section 9(2)(b) is a new provision in connection with the obtaining of information required or likely to be required for the purposes of fire-fighting.
11. Part 3 of the 2005 Act is concerned with the fire safety duties of an employer[4587].
12. The "enforcing authority" referred to in the succeeding provisions of part III of the 2005 Act is a fire and rescue authority, (or a joint fire and rescue board where a scheme for combining two or more fire and rescue authorities has been implemented in terms of section 2(1) of the 2005 Act)[4588]
13. Section 53, as enacted, provided inter alia as follows:-
"(1) Each employer shall ensure, so far as is reasonably practicable, the safety of the employer's employees in respect of harm caused by fire in the workplace.
(2) Each employer shall-
(a) carry out an assessment of the workplace for the purpose of identifying any risks to the safety of the employer's employees in respect of harm caused by fire in the workplace;
(b) take in relation to the workplace such of the fire safety measures as are necessary to enable the employer to comply with the duty imposed by subsection (1).
(3) Where under subsection (2)(a) an employer carries out an assessment, the employer shall-
(a) in accordance with regulations under section 57, review the assessment; and
(b) take in relation to the workplace such of the fire safety measures as are necessary to enable the employer to comply with the duty imposed by subsection (1).
(4) Schedule 2 makes provision as to the fire safety measures."
14. Section 54, as enacted, provided inter alia, as follows:
"(1) Where a person has control to any extent of relevant premises the person shall, to that extent, comply with subsection (2).
(2) The person shall-
(a) carry out an assessment of the relevant premises for the purpose of identifying any risks to the safety of relevant persons in respect of harm caused by fire in the relevant premises; and
(b) take in relation to the relevant premises such of the fire safety measures as in all the circumstances it is reasonable for a person in his position to take to ensure the safety of relevant persons in respect of harm caused by fire in the relevant premises..."
15. Section 55, as enacted, provided inter alia as follows:
"...(2)The person shall implement the fire safety measures on the basis of the considerations mentioned in subsection (3).
(3)Those considerations are-
(a) avoiding risks;
(b) evaluating risks which cannot be avoided;
(c) combating risks at source;
(d) adapting to technical progress;
(e) replacing the dangerous with the non-dangerous or the less dangerous;
(f) developing a coherent overall fire prevention policy which covers technology, organisation of work and the influence of factors relating to the working environment;
(g) giving collective fire safety protective measures priority over individual measures; and
(h) giving appropriate instructions to employees."
16. Section 61, as enacted, provided inter alia as follows:
S
"(1) Each enforcing authority shall enforce the Chapter 1 duties.
(2) In carrying out the duty imposed by subsection (1), an enforcing authority shall have regard to any guidance given by the Scottish Ministers.
(3)For the purpose of carrying out the duty imposed by subsection (1), an enforcing authority may appoint enforcement officers.
(4)If the enforcing authority is the person appointed under section 43(1)(a), the authority may, subject to subsection (5), appoint under subsection (3) a person who has been appointed under subsection (3) as an enforcement officer by a relevant authority.
17. Section 62, as enacted, provided inter alia as follows:
"(1 )An enforcement officer may do anything necessary for the purpose mentioned in section 61(3).
(2) An enforcement officer may in particular under subsection (1)-
(a) at any reasonable time (or, in a situation which in the opinion of the officer is or may be dangerous, at any time), enter relevant premises and inspect the whole or part of the relevant premises and anything in them;
(b) take onto the relevant premises-
(i) such other persons; and
(ii) such equipment,
as the officer considers necessary;
(c) require a person on the relevant premises who is subject to any of the Chapter 1 duties to provide the officer with any-
(i) facilities, information, documents or records; or
(ii) other assistance,
which relate to those duties and which the officer may reasonably request;
(d) inspect and copy any documents or records on the relevant premises or remove them from the relevant premises..."
18. Sections 63 and 64 made provision for the service of prohibition and enforcement notices by the enforcing authority.
19. Section 79(1) defined "relevant person" (so far as relevant for present purposes) as "any person who is, or may be, lawfully in the premises" and "any person (i) who is, or may be, in the immediate vicinity of the premises, and (ii) whose safety would be at risk in the event of fire in the premises"
20. The fire safety duties introduced by section 53(4) of the 2005 Act were set out in schedule 2, thus:-
"Subject to paragraph 2, the fire safety measures are-
(a) measures to reduce the risk of-
(i) fire in relevant premises; and
(ii) the risk of the spread of fire there;
(b) measures in relation to the means of escape from relevant premises;
(c) measures for securing that, at all material times, the means of escape from relevant premises can be safely and effectively used;
(d) measures in relation to the means of fighting fires in relevant premises;
(e) measures in relation to the means of-
(i) detecting fires in relevant premises; and
(ii) giving warning in the event of fire, or suspected fire, in relevant premises;
(f) measures in relation to the arrangements for action to be taken in the event of fire in relevant premises (including, in particular, measures for the instruction and training of employees and for mitigation of the effects of fire); and
(g) such other measures in relation to relevant premises as may be prescribed by the Scottish Ministers by regulations..."
21. Part 3 of the 2005 Act came into force on 1st October 2006[4589].
3. The Fire Safety (Scotland) Regulations 2006
22. Miss MacDougall was involved as lead policy official in the process of drawing up what became the Fire Safety (Scotland) Regulations 2006 ("the 2006 Regulations")[4590].
23. The 2006 Regulations also came into force on 1st October 2006[4591],
24. They brought about the revocation of the Fire Precautions (Workplace) Regulations 1997, the Fire Precautions (Workplace) (Amendment) Regulations 1999, and those parts of the Management of Health and Safety at Work Regulations 1999 which related to the 1997 Regulations[4592]
25. Part II of the 2006 Regulations made further provision for risk assessments undertaken for the purposes of sections 53 or 54 of the 2005 Act. Regulation 3, in particular, requires such assessments to be kept under review.
26. The regulations concerned with fire safety are set out in part III of the 2006 Regulations. Regulation 10 set out the requirement for appropriate fire safety arrangements, and the recording of those arrangements, for the effective planning, organization, control, monitoring and review of the fire safety measures within schedule 2 of the 2005 Act.
27. Regulation 13 made provision for means of escape in order to ensure the safety of "relevant persons"[4593]. Regulation 14 was concerned with procedures for serious and imminent danger from fire and for danger areas. Thus a person with duties under sections 53 or 54 of the 2005 Act was to "establish and, where necessary, give effect to appropriate procedures, including fire safety drills, to be followed in relevant premises in the event of serious and imminent danger to relevant persons from fire", as well as "nominate competent persons to implement those procedures in so far as they related to the evacuation of relevant persons from relevant premises", and "ensure that no relevant person has access to any area to which it is necessary to restrict access on grounds of safety in respect of harm caused by fire, unless the person concerned has received adequate instruction."
28. Regulation 16 made provision for maintenance of premises. Regulation 20 set out what an employer was bound to do in relation to "adequate fire safety training" which was to be repeated periodically when appropriate[4594].
29. The point was made in the explanatory note that Part 3 of the 2005 Act replaced fire certification under the Fire Precautions Act 1971[4595].
30. The task of the enforcing authority was to make sure that the legislation was being complied with, and to make sure that people were aware of their responsibilities[4596].
31. Neither the 2005 Act nor the 2006 Regulations imposed on the enforcing authority any particular regime of inspection. It was a matter for the enforcing authority to determine the frequency of inspections under its integrated risk management plans[4597].
4. Strategic Enforcement Guidance for Fire and Rescue Authorities
32. In a Circular dated 27th September 2006, the Scottish Ministers issued guidance on enforcement under the title Strategic Enforcement Guidance for Fire and Rescue Authorities and Joint Fire and Rescue Boards[4598].
33. Fire and Rescue Authorities are bound to have regard to the guidance[4599].
34. The guidance states that each Fire and Rescue Authority should have in place a programme of enforcement audit for premises to assess compliance with the duty holder's responsibilities under part III of the 2005 Act. The guidance does not suggest fixed frequencies of audit, but some authorities may allocate periodic fixed term frequencies according to risk rating of premises[4600].
35. Paragraphs 16 to 20 give particulars about what is involved in the risk based approach to enforcement activity, which activity should focus primarily on those premises and activities which give rise to the most serious risk of harm[4601].
36. Paragraphs 21 to 24 give guidance on dealing with compliance failure[4602]. There is also guidance about the giving of information and advice, when requested, about fire safety under section 8(2) of the 2005 Act[4603].
37. Accordingly, in terms of the guidance, the frequency of audit would be dependent on the outcome of the risk profiling exercise undertaken by each Fire and Rescue Authority[4604].
5. Fire Safety Guidance Booklet[4605] and preparation of sector specific guidance
38. Joanne MacDougall was the lead policy official responsible for preparing guidance in relation to part III of the 2005 Act. The Fire Safety Guidance Booklet was first published in August 2006, and distributed widely[4606]. It pre-dated the new legislation and was intended to alert people to the forthcoming legislative changes[4607].
39. The Fire Safety Guidance Booklet was not sector specific. However, on page 11, specific reference was made to care homes and the importance of fire safety measures in such premises. This was an introduction pending publication of the sector specific guidance[4608]. In the wake of the Rosepark fire Ministers had, in 2004, given statements to the effect that specific guidance would be issued[4609]. In the summer of 2005, work had started on producing guidance specific to the circumstances of care homes[4610]. There was limited consultation in around August 2005 leading to a period of full public consultation in November of that year[4611]. This involved a draft Fire Safety Guide, production 1379[4612]. Practical Fire Safety Guidance for Care Homes was first published on the fire law website in September 2006[4613]. Hard copies were distributed about a year later[4614]
6. Practical Fire Safety Guidance for Care Homes
40. The latest version[4615] was published in February 2008. While there were two earlier versions there were no significant changes made to the guidance[4616]. In the opinion of Colin Todd the guidance contained in production 1943 was excellent. Mr Todd explained that there had been a "fantastic" consultation exercise. The Scottish Government sought comments as widely as possible[4617], and the product was excellent as a result[4618].
41. The guidance was prepared with input from fire specialists who would have been familiar with the circumstances of the investigation into the fire at Rosepark[4619]
7. Part III of the 2005 Act and the Care Commission
42. Joanne MacDougall's understanding was that prior to the passing of the new legislation the Care Commission had to consult with the Fire and Rescue Authorities when a home sought to be registered. In recognition of the fact that it was the Fire and Rescue Authorities who had the expertise where fire safety was concerned one of the intended reforms was that fire safety enforcement should be the responsibility of the Fire and Rescue Authorities. There would be repealed any fire safety references in licensing or registration legislation so that it would be obvious that the appropriateness of fire safety measures was a matter for the Fire and Rescue Authorities[4620].
43. After 1st October 2006 the Care Commission still had responsibility for aspects of care homes (including registration). But they were, according to Miss MacDougall, no longer responsible for considering fire safety measures. That responsibility lay with the Fire and Rescue Service. However, in considering whether to register a new care service the Care Commission could still seek the advice of Fire and Rescue Authorities, and Miss MacDougall spoke of encouraging continued communication between the Care Commission and Fire and Rescue Authorities even after 1st October 2006[4621].
44. One of the objectives of the Bill team was to reflect in the legislation the fact that the Care Commission would not have any participation in fire safety issues[4622]. That the Care Commission was to cease to have any statutory involvement in matters of fire safety was reflected in the amendments to the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002[4623], effected by the Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No. 2) Order 2006, regulation 6[4624]. However, in practice, the Care Commission might still wish to seek the advice of the Fire and Rescue Service in respect of the appropriateness of fire safety measures in a care home[4625].
45. In that state of affairs Miss MacDougall was surprised that there were still references to fire safety in the National Care Standards published in November 2007, and would have queried the inclusion of fire safety in the standards given the changes to the legislation[4626]. Indeed she would have expected to be consulted as a member of what was then the Fire and Civil Contingencies Division of the Department of Justice. The intention was that fire safety should be completely taken away from the Care Commission and placed in the hands of the Fire Brigade[4627].
46. Miss MacDougall's understanding of the position was better reflected by the statement in the document numbered 3 in the first inventory of productions for the Care Commission headed Fire Safety Guidance for 24-Hour Services, and the statement in that document that a consequence of part 3 of the 2005 Act was that with immediate effect, Care Commission Officers will not inspect or regulate any fire safety matters.[4628] She accepted, however, that if the purpose of retaining references to fire safety in the national care standards reflected a position in which the Care Commission was not averse to being kept advised of fire safety matters then there would be no particular difficulty. But the Care Commission was not intended to have any responsibility for fire safety enforcement[4629].
8. Enforcement of the 2005 Act and the 2006 Regulations by SFRS
47. Enforcement of the part III duties is undertaken on the basis of assessment of risk[4630]. In the case of care homes, however, all care homes are visited once per year[4631].
48. Since 2005 Fire and Rescue Authorities have required to prepare an Integrated Risk Management Plan detailing how they will respond to risks in their area[4632].
49. The guidance, production 1942, recognised that some Fire and Rescue authorities might wish to allocate periodic fixed frequencies for auditing certain premises[4633]. It was under reference to that paragraph that, in Strathclyde, the view was taken that care homes should be visited once per year[4634].
50. At an audit (or inspection) normally two enforcement officers are in attendance. They would obtain a copy of the premises risk assessment and go through it with the owner, occupier or responsible person. They would take a view on the safety and suitability of the assessment and conduct an inspection of the premises to make sure that the precautions listed could be attested to first hand[4635].
51. The overall approach to risk and auditing of its risk enforcement strategy would be made subject to review[4636]. The inspections could be either announced or unannounced, depending on how risky the premises were assessed to be[4637]. Mr Sweeney did not necessarily subscribe to the view that all visits should be unannounced[4638].
52. Mr Sweeney's view was that the Care Commission did not retain any involvement in matters of fire safety[4639].
53. There may be some subtle differences between enforcement under the 2005 Act and enforcement according to the memorandum of understanding with the Care Commission (which was a holding operation until October 2006)[4640].
54. Under reference to the National Care Standards, November 2007, Mr Sweeney stated that he was unaware of the degree of current interaction. However, he would always encourage the best possible maintenance of relationships to ensure staff and patient safety; it looked as though the National Care Standards evidenced a desire on the part of the Care Commission to continue fostering a fire safety regime that was suitable[4641]. Whether that be so or not, Mr Sweeney readily accepted that it was now for the Fire and Rescue Services to enforce the part III duties[4642] and it did so by inspecting care homes at least annually.
9. Fire (Scotland) Act 2005 and the Care Commission
55. Ronald Hill, Director of Inspection Services at the Care Commission, gave evidence about the current approach of the Care Commission to issues of fire safety.
56. Mr Hill did not have a detailed understanding of how the Fire and Rescue Services went about enforcing the part III duties. He confirmed the terms of the amendments to the 2002 Regulations by the removal from regulation 19 of the references to records of fire procedure and drills[4643]. However, the Care Commission did still look at matters of fire safety because there continued to be references to fire safety in the National Care Standards[4644]. The Care Commission does not have responsibility for enforcement of fire safety but it does not ignore matters that come to its attention[4645]. Otherwise it would not know whether there was any need to report matters to the Fire and Rescue Service[4646]
57. No change was effected to the wording of the National Care Standards in either 2005[4647] or 2007[4648]. So fire safety was not ignored by the Care Commission after 1st October 2006. The way Jacqueline Roberts put it was that you could not ignore the fact that you would need good systems around fire safety when you were visiting care services. It was like environmental health. The Care Commission was not responsible for environmental health issues, but if the inspectors picked up examples of clearly poor environmental health practice they would refer the matter to environmental health. It would be unrealistic for Care Commission staff to visit a care service and not notice an obvious fire safety risk and refer it to the enforcing authority, namely the Fire and Rescue Authority. Since wording remains in the National Care Standards, fire safety issues cannot be ignored. However, Care Commission officers do not pretend to be fire safety experts. They look at a whole range potential risks[4649].
58. At a practical level Care Commission officers all received guidance on how to approach their inspections in light of the passing of part III of the 2005 Act[4650]. The guidance contained a sample of the Fire Safety Checklist which now required to be completed and submitted to the Fire and Rescue Service as part of the process of registration. The way in which the exercise appears to operate is that the Fire and Rescue Authority will require to approve the arrangements covered by the checklist. Indeed Mr Hill was aware of correspondence in which the Care Commission were advised by the Fire and Rescue Service that the arrangements were not satisfactory. In that event there would be no registration until the matters deemed unsatisfactory had been resolved[4651]. The notes attached to the checklist state that the checklist is not itself a fire risk assessment for the purposes of the 2005 Act[4652].
59. The applicant for registration appears then to require to submit a declaration to the Care Commission detailing that the Fire Safety Checklist has been completed ans sent to the local Fire & Rescue Service for action[4653] appears then to be
60. This approach raised an issue during the evidence about the wording of the guidance Fire Safety Guidance for 24 Hour Services issued to Care Commission Staff from April 2007. On page 13 of that guidance there is a section entitled Update - Changes to Fire Safety Issues. Under reference to the legal principles that underpin part 3 of the Fire (Scotland) Act 2005, the guidance stated that "with immediate effect Care Commission officers will not inspect or regulate fire safety matters"[4654].
61. Currently, Care Commission reports bear a statement worded (as at 9th March 2010) in the following terms[4655]: "The Care Commission no longer reports on matters of fire safety as part of its regulatory function. Where significant fire safety issues become apparent, we will alert the relevant Fire and Rescue service to their existence in order that it may act as it considers appropriate. Care Service providers can find more information about their legal responsibilities in this area at: www.infoscotland.com/firelaw"[4656]
62. Standing the evidence of Mr Hill and Mrs Roberts it is probably correct that the guidance overstates the position[4657]. Mr Sweeney's ready acknowledgement of the responsibilities of SFRS for enforcement of the range of part III duties under the 2005 Act means that the wording may not be creating practical difficulties. However, if this guidance remains in force it is submitted that it would be appropriate for the wording to reflect, as accurately as possible, the approach actually taken by the Care Commission to its statutory responsibilities under the 2001 Act and 2002 Regulations.
63. In conclusion, the position following the enactment of part III of the Fire (Scotland) Act 2005 involves a greater level of communication between the Care Commission and the Fire and Rescue Services. This is reflected in the Fire Safety Checklist that applicants for registration require to complete and submit for consideration by Fire and Rescue Services[4658].
64. Part III of the Fire (Scotland) Act 2005 does not prescribe the level of frequency with which Care Homes should be inspected by Fire and Rescue Services. The approach remains one based on assessment of risk[4659]. SFRS visit all care homes once per year[4660]. While the practice of other Fire and Rescue Authorities was not the subject of examination during the Inquiry, the experience of the fire at Rosepark illustrates all too clearly the risks associated with fire within the care home environment. No doubt Fire and Rescue Services will wish to ensure that those risks have been fed into the risk profiling exercise contemplated by the Circular "Strategic Enforcement Guidance for Fire and Rescue Authorities"[4661].
10. Future Developments in the Regulatory Field
65. The role of the Care Commission in inspecting private care homes will be assumed by an organisation called Social Care and Social Work Improvement Scotland (or "SCSWIS"). The only activity which will be removed from the Care Commission is the regulation of private and independent hospitals (including hospices)[4662] which will be regulated by a different body[4663]. Otherwise the Care Commission's functions will be transferred to the new body[4664].
66. Care homes will come within the jurisdiction of SCSWIS. The regulatory functions will be very similar. One of the drivers behind the change is to bring the scrutiny of social care and social work services (a product of the 2001 Act) together in one body[4665]. The regulatory functions of SCSWIS will be the same as those of the Care Commission, based on an approach in which service providers undertake as effective as possible performance assessments of their services. There remains a very strong emphasis on working for improvement, rather than regulation and scrutiny. There has been removed from the legislation the statutory minimum frequency of inspection. The philosophy is that scrutiny should be much more risk based. Mrs Roberts likened this to part III of the 2005 Act which is based on integrated risk assessment. The Care Commission currently has a very detailed risk assessment in place, which has been validated by Glasgow Caledonian University. Mrs Roberts anticipated that SCSWIS will have a very regular inspection regime for 24 hour services for vulnerable, older people[4666].
67. SCSWIS will be expected to be even more proportionate in its approach, and basing its judgment of activities even more on risk assessment than has been the case to date[4667].
68. The discussion over the wording of the guidance issued to staff of the Care Commission in 2007 (that "with immediate effect Care Commission officers will not inspect or regulate fire safety matters") is illustrative of a more general imperative. Thus, in a field where more than one regulator operates, it is of the first importance that areas of responsibility are clearly identified, understood and agreed.
69. The Memorandum of Understanding between the Care Commission and the Fire and Rescue Authorities, which followed the fire at Rosepark, was a clear attempt to bring clarity to the relationship between the two parties, and to the areas of responsibility for fire safety which either party assumed. The need for clarity was, and is, self-evident.
70. A new regulator will be taking over the Care Commission's regulatory responsibilities. It is submitted that early attention to placing on a formal footing the relationship between SCSWIS and the Fire and Rescue Authorities, and how they are to operate together in the care service sphere, is not just desirable but essential.
71. The same may be said for the relationship between SCSWIS and other regulators operating outwith the sphere of fire safety[4668].
CHAPTER 46(6)(D) - DEVELOPMENTS SINCE THE ROSEPARK FIRE - BUILDING REGULATIONS
1. At the time when Rosepark was constructed, the relevant building standards were set out in the Building Standards (Scotland) Regulations 1981 as amended. These Regulations were replaced by the Building Standards (Scotland) Regulations 1990, which came into force on 1st April 1991. Unlike the previous Regulations, the 1990 Regulations were in the form of statements of requirement supported by Technical Standards. The relevant standards could be met by conformity with the Technical Standards or by any other means which could be shown to meet the relevant standards.
2. The Sixth Amendment to the 1990 Regulations, enacted in 2001, made material changes to the provisions in relation to fire precautions and protection of the means of escape. Of particular note were the following:-
2.1. Provision for sub-compartmentation, requiring every compartment in (inter alia) residential care homes to be divided into sub-compartments of not more than 750 square metres by walls with a 30 minute fire rating. Bedrooms in such a building were to be treated as if they were sub-compartments, with the practical consequence that bedrooms in new residential care homes to which these and subsequent Regulations applied required to be enclosed by walls and doors of a 30 minute fire rating[4669].
2.2. Residential care homes were required to have a fire detection and alarm system[4670].
As is usually the case with amendments to the Building Standards, these changes did not apply retrospectively to existing buildings.
3. Following the fire, the Building (Scotland) Regulations 2004[4671] were enacted pursuant to the Building (Scotland) Act 2003. The 2004 Regulations came into force in May 2005 and represented a radical change from the previous legislation. A significant new provision was the requirement, applicable to residential care buildings and some other buildings, that the building be designed and constructed in such a way that, in the event of an outbreak of fire, fire and smoke will be inhibited from spreading through the building by the operation of an automatic life safety fire suppression system[4672] - in effect, that residential car buildings to which these Regulations applied, must be fitted with a sprinkler system. The Regulations were supported by Technical Handbooks which, though not mandatory, gave practical guidance on meeting the required standards[4673].The Technical Handbook contained, in Annex 2A, Additional Guidance for Residential Care Buildings, setting out specific guidance in relation to care homes[4674].
CHAPTER 46(6)(E)_- DEVELOPMENTS SINCE THE FIRE - ROSEPARK CARE HOME
1. The inquiry heard evidence that since the fire, significant changes have been made at Rosepark itself.
2. Following the fire, the management of the Home immediately insisted that all fuse boxes be separated. There is still a distribution board in the general location where cupboard A2 was situated, but it is now in a separate cupboard of its own, which is kept locked[4675].
3. There continue to be storage cupboards in the general area of corridor A2. Those cupboards are now kept locked[4676]. Aerosol cans and the like are kept separate from any potential source of heat[4677].
4. Following the fire, swing free door closers were fitted to all bedroom doors. Staff are instructed that the default position is that bedroom doors should be closed at 11 pm, but staff are permitted to exercise a clinical judgment to leave a bedroom door (which will be fitted with a swing free closer so that, in the event of a fire alarm it should close) open[4678].
5. The fire alarm system which was in place at the time of the fire has been replaced with an analogue addressable system, which identifies the specific detector head which has been activated[4679].
6. The zoning has been altered, so that, in effect, each floor is a separate zone. However, since the particular detector head which has been activated is identified at the panel, this is of less significance[4680].
7. The alarm system now sends a signal direct to the Fire Service when it is activated[4681].
8. In addition, staff are instructed to phone the Fire Service immediately on the fire alarm sounding. There are notices to that effect. Staff are trained in that policy[4682].
9. All members of staff are required to take a fire warden's course. The care managers are instructed to keep a matrix which allows ready identification of whether all staff are appropriately trained[4683]. New members of staff undergo a three day induction[4684]. Bank staff are not allowed on duty without the equivalent orientation and familiarization[4685]. Care Managers have an expanded job description and training[4686].
10. There are monthly fire drills. These take place when the members of staff in question are on duty, including both dayshifts and nightshift. Training is organized by reference to a matrix which highlights if any staff have not attended the required number of fire drills[4687].
11. Staff are given annual training by a specialist provider in the use of fire extinguishers. If the fire alarm sounds, two staff are dispatched immediately to the location of the detector which has activated. They each pick up a fire extingusher en route[4688].
12. The electrical installation is inspected quarterly by an external contractor. Records are kept of this inspection both by the contractor and at the Home[4689].
CHAPTER 46(6)(F) - MR. TODD'S EVIDENCE
1. Mr. Todd prepared a document, Pro 1779, setting out a number of suggestions and recommendations arising from his understanding of the circumstances of this inquiry. Mr. Todd has identified, in Pro 1779, matters which properly arise from the subject-matter of this inquiry, and which it is appropriate that those charged with policy in relation to fire safety should consider.
2. In the course of Mr. Todd's evidence, counsel for the Scottish Government indicated that the Scottish Government accepted many of Mr. Todd's recommendations, and in respect of others expressed their willingness to consider further the issues raised by Mr. Todd.
3. The Crown has sought determinations under the relevant heads of section 6 on a number of issues which are addressed in Mr. Todd's recommendations. It is to be anticipated that these determinations - as well as the exposure through the inquiry of the circumstances of this particular case - will bring these matters firmly to the attention of care home operators and of relevant regulators and policymakers.
Section 4 - inspection and testing of fixed electrical installations
4. Mr. Todd made recommendations in respect of the regulation of the inspection and testing of fixed electrical installations. The Crown has invited a determination in this regard above, and has suggested that the relevant regulators might be invited to consider this issue[4690].
Section 5 - use of addressable alarm systems
5. Mr. Todd made recommendations in respect of the use of addressable alarm systems. The Crown has made some observations on this issue above, and has not, in light of the evidence, invited a finding that the installation of such a system would have been a reasonable precaution at Rosepark[4691]. Nevertheless, the benefits of such a system were apparent from the evidence and in the course of cross-examination of Mr. Todd, the Scottish Ministers through their counsel indicated a willingness to consider revising the Care Homes Guidance along the lines suggested by Mr. Todd, subject to consulting on the matter of cost-benefit and expense[4692].
Section 6 - fire alarm zone plans
6. Mr. Todd made recommendations in respect of the use of fire alarm zone plans[4693]. The Crown has invited a finding that it would have been a reasonable precaution at Rosepark to have provided clear information at the fire alarm panel (and, in particular, a diagrammatic representation) enabling staff to identify quickly and accurately the location of the detector which had been activated. One may anticipate that if such a determination is made, it will be noted by relevant policymakers, including the authors of the British Standard.
Section 7 - staffing numbers
7. Mr. Todd recommended that the Care Home Guidance issued by the Scottish Ministers should provide a definitive benchmark on the minimum number of staff required for the purpose of evacuation[4694]. It is plain from the circumstances of this case that it is essential that care home owners, through the process of risk assessment, address the practicalities of evacuation - including the number of staff required in the circumstances of the particular home. This is already emphasized in the Care Homes Guidance[4695] but without giving a specific benchmark figure. Mr. Todd accepted in cross-examination that various factors (notably the physical characteristics of the building, dependency of residents and whether or not there was a sprinkler system) would affect the number of staff required. The Crown acknowledges - as did Mr. Todd - that there may be scope for reasonable differences of view[4696] and that, ultimately, the issue of how the guidance should be framed in this regard is one of policy for the Scottish Government. It is to be hoped that the findings of this inquiry will highlight to those involved in the management and regulation of care homes the importance of considering seriously how an evacuation would be carried out, and, in that regard, address the numbers of staff necessary to achieve that.
Section 8 - retro-fitting of sprinkler systems
8. The BRE work demonstrated the striking value of a sprinkler system in relation to fire safety. The fitting of sprinkler systems comes, however, at a cost. It is striking that even in relation to new homes England and Wales has not adopted the approach taken in Scotland following the Rosepark fire of requiring that new care homes incorporate an automatic suppression system[4697]. Mr. Todd addressed the question of retro-fitting sprinkler systems to existing homes. He suggested that guidance could recommend that consideration be given to this in a case where the time for evacuation of a sub-compartment may be long, unless there is a commensurate increase in the number of staff on duty at night. He also suggested that guidance should recognise the potential for partial sprinklering as a more cost-effective option in certain cases. Counsel for the Scottish Government indicated to Mr. Todd that the Scottish Government supported this latter suggestion[4698].
Section 9 - protected corridors
9. Mr. Todd recommended that care home operators and enforcing authorities should be alerted to the dangers associated with bedroom corridors in care homes constructed in accordance with previous building regulations, in which corridor walls are not fire-resisting and/or doors opening into the corridor are not fire resisting and self-closing (or, in the case of cupboard doors, are not fire-resisting and locked shut). He also suggested that the relevant Technical Handbook be amended unequivocally to specify this standard. The Crown has invited the Court to make determinations under section 6(1)(c) in relation to the doors of cupboard A2 and bedroom doors, which should, in the context of the circumstances of this inquiry, reinforce the need for attention to be paid to this issue by care home operators and regulators. So far as Mr. Todd's second recommendation is concerned, an amendment to the Non-domestic Technical Handbook has already been made and came into force in October 2010[4699].
Section 10 - self-closing bedroom doors
10. Mr. Todd recommended that care home operators and enforcing authorities should be alerted to identify circumstances in which bedroom doors are likely to be held open by any means other than an acceptable hold-open device that will release the door automatically on operation of the fire alarm system. He suggested that the Care Home Guidance be amended to include, in addition to the existing references to hold-open devices, a reference to radio-linked hold-open devices and that acoustically-linked hold-open devices should not be used to hold open doors to staircases. The Crown has invited the Court to make determinations in respect of bedroom doors and the use of hold-open devices, which should, in the context of this inquiry, reinforce the need for attention to be paid to this issue by care home operators and regulators. So far as Mr. Todd's specific recommendations about radio-linked and acoustically-linked devices are concerned, counsel for the Scottish Government indicated that they supported these recommendations and that a change to the Building Standards in that regard was in hand[4700].
Section 11 - remote transmission of fire alarm signals
11. Mr. Todd recommended that care home operators and enforcing authorities be alerted to the need for early summoning of the fire and rescue service when the fire alarm system operates in a care home, particularly at night. The recommendation for automatic transmission of fire alarm signals should be reinforced. The British Standard should be amended to emphasise the likely need for automatic transmission of fire alarm signals in residential care homes. In evidence he expressed the view that it would be going too far to make this a prescriptive rule, since it might not be appropriate or necessary for some types of care homes[4701]. The Crown has invited a determination under section 6(1)(c) as regards the making of an immediate call to the fire service and automatic transmission of a signal to the fire service which should, in the context of this inquiry, reinforce the need for such steps to be taken and for the relevant British Standard to be reviewed in light of these determinations.
Section 12 - use of staff alarm arrangements
12. Mr. Todd recommended that the Scottish Government should amend the guidance to make clear that staff alarm arrangements - whereby there is a delay in summoning the fire service when the fire alarm sounds at night - should not be adopted in residential care homes at night (except in very unusual circumstances), and that consideration be given to whether such arrangements are acceptable during the day. He recommended that any new Scottish Government guidance be forwarded to the BSI. The Scottish Government's counsel indicated to the inquiry that the Scottish Government accepted these recommendations[4702]. The dangers of delaying a call to the fire service in the event of a fire alarm sounding in a care home at night are plain from the circumstances of this case.
Section 13 - third party certification arrangements
13. Mr. Todd recommended that the guidance should alert care homes to the benefits of third party certification schemes. The Crown has made certain submissions about the position specifically in relation to the competence of fire risk assessors in which the Crown suggests that there is a case, in that context, either for a more prescriptive approach or at least for stressing the value of third party certification schemes[4703]. Counsel for the Scottish Government indicated that they were prepared to consider amendment to the guidance along the lines suggested by Mr. Todd[4704].
Section 14 - staff training
14. Mr. Todd recommended that guidance should specify the frequency and content of training,and that consideration should be given to the development of a model fire safety training package for residential care staff. No one who heard the evidence in this inquiry could doubt the importance of appropriate training and drills for staff in care homes. The Scottish Government indicated through counsel that they were not minded to seek to make their guidance (which already refers to the importance of staff training) more prescriptive in this regard. The determinations of this inquiry should reinforce in the minds both of care home operators and care regulators the need for all care homes to examine closely the frequency, duration and content of their training and drilling arrangements, to put in place appropriate arrangements in that regard, and to monitor and audit their own compliance.
Section 15 - routine inspections
15. Mr. Todd recommended that routine inspections should be undertaken by management of care homes, that these should be recorded, and that the requirement be underpinned by regulations. Counsel for the Scottish Government pointed out that there is already a legal obligation on the dutyholder under the 2006 Regulations to control, monitor and review fire safety precautions and to keep records.
Section 16 - plans for use by the fire and rescue services
16. Mr. Todd recommended that care homes above a certain size should keep plans of the premises for use by the Fire Service unless the fire alarm system zone plan was sufficient for this purpose. Counsel for the Scottish Government indicated that policymakers considered that the onus in this regard should be on the Fire and Rescue Services, who have a responsibility to obtain information required or likely to be required for extinguishing fires and protecting life and property.
Section 17 - the principle of care
17. Mr. Todd considered that it would be of benefit if the inquiry could result in the dissemination of the message that the care of residents in a care home includes protection from fire. The circumstances of this inquiry should leave no one in any doubt of the truth of that proposition. The publicity which has been given to the tragedy at Rosepark, to this inquiry, and, it may be anticipated, to the determinations of the Sheriff Principal will no doubt reinforce that message.
Section 18 - call challenging
18. Mr. Todd recommended that in the case of an emergency call from a residential care home at night, fire and rescue services should not adopt the practice of call challenging. He made clear that he did not understand that this practice was adopted by any Scottish Fire and Rescue Service, although some fire services in England and Wales had done so[4705]. The Crown has invited determinations which emphasise, in the context of a fire alarm sounding in a care home at night, the need for the Fire Service to be called immediately, and the need for a speedy and sufficient response. It should be plain from the circumstances of this inquiry that a practice which involved delay in responding to a fire alarm at a care home at night would be a dangerous one.
Section 19 - familiarization visits
19. Mr. Todd recommended that consideration be given to encouraging Fire and Rescue Services to carry out familiarization visits to care homes above a certain size, and that the Care Homes Guidance encourage owners to be pro-active in inviting Fire and Rescue Service crews for familiarization visits. The Scottish Government, through counsel, indicated that they considered that this was already addressed in existing legislation imposing duties on both care home owners and fire services, and that the issue should appropriately be left to Fire Services.
Section 20 - competence of risk assessors
20. Mr. Todd made a number of recommendations in relation to the competence of risk assessors. The Crown has invited a determination on this matter, and made certain submissions in that regard. Mr. Todd gave evidence about bodies who already accredit fire risk assessors. The Scottish Government, through counsel, intimated their intention to consider making appropriate reference to the benefits of third party certification schemes in their guidance. In relation to comments by Mr. Todd on certain documents published on the Scottish Government fire law website, counsel for the Scottish Government invited Mr. Todd to address any comments to the relevant officials of the Scottish Government, who undertook to consider any comments from him.
Section 21 - dissemination of information
21. Mr. Todd invited consideration of an amendment to the Building (Scotland) Regulations 2004 to require information to be provided on fire safety measures to a duty holder on completion of a building project. Counsel for the Scottish Government indicated that this was under active consideration.
SUBMISSION FOR THE BALMER PARTNERSHIP
ROSEPARK CARE HOME INQUIRY
On 31st January 2004 a fire broke out at Rosepark Nursing Home in Uddingston. There were in total 14 residents who died. 10 residents died at the home and four died in hospital.
This was undoubtedly a tragic accident, which happened at night time and was totally unexpected. No organisation or individual intentionally caused this fire.
It is important to note that the remit of the sheriff principal is prescribed by the (Fatal Accident and Sudden Death Inquiry Scotland Act 1976).
It is essential to recognise that the Sheriff has no power or indeed any obligation to apportion blame between any persons or organisations whose actions or omissions may have contributed in some way to the accident.
There may be in this inquiry question marks raised over the actions or omissions of a number of different individuals or organisations but it would be reasonable to conclude in the whole circumstances of this inquiry that no individual or organisation acted in anything other than good faith.
We agree with the Crown analysis that the purpose of this inquiry is that armed with the benefit of hindsight and expert opinion and evidence available many years after the tragedy that the determinations produced are for the purpose of preventing any recurrence of an accident of this nature in the future.
It should play no part of the courts determination that individuals or organisations behaved in a reasonable or unreasonable fashion.
CHAPTER 2
In relation to the law of evidence it is perfectly straight forward that the rules relevant at a fatal accident inquiry are those that apply in civil proceedings. It is completely unnecessary to rehearse in detail the legal framework, which the court operates within. The simple fact of the matter is that the court will access all of the evidence including the expert opinion and form its own judgement using its experience and common sense.
Even in this case where there are competing theories it is reasonable to assert that in highly unusual and unexpected circumstances a series of unusual events can come together at a particular point in time leading in total to an unexpected tragedy. In other words in this case it may reasonably be said upon further analysis that a number of individual events or omissions would not in themselves directly have caused the tragedy but taken together have set in train a tragedy.
CHAPTER 3
Chapter 3 accurately sets out the location and layout of Rose Park Care Home.
This was a purpose built home designed to be a leading care home in the area to provide excellent care and conditions for its residents and staff. In relation to the layout of the home there was undoubtedly an issue about what constituted the ground floor of the home. Mr Dickie's plans described the upper floor as the ground floor with the lower floor described as the lower ground floor. Strathclyde fire and rescue service for their own usage used the terminology first floor and ground floor. The majority of the staff used the terms upstairs and downstairs and whilst a couple of members of staff showed slight signs of confusion about the terminology there was no general misunderstanding about the layout of the home and recognition of where to go when directed to do so.
CHAPTER 4
MANAGEMENT AND STAFFING AT THE TIME OF THE FIR
At the time of the fire Rose Park Care home was managed by a partnership primarily consisting of Thomas Balmer and his wife Anne Balmer and laterally their son Alan Balmer. Alan Balmer was primarily based at Croft Bank the second Nursing Home that was owned by a limited Company. Alan Balmer's responsibility for Rosepark Care Home was extremely limited and he was the junior partner. He was only directly in charge of Rosepark when both Thomas and Anne Balmer were on holiday. Alan Balmer was not a registered person at Rosepark but Thomas and Anne Balmer were.
Thomas Balmer worked extremely hard at Rosepark Care Home and was normally based there from early in the morning until around 6pm in the evening. He discussed a variety of matters with the staff every day and generally walked around the building at least twice a day. Tom Balmer whilst having no direct experience of running a care home had significant experience in the business world of dealing with staff, regulators and professionals in industries that were heavily regulated such as food, baking and catering and off licenses. He was also involved in Supermarkets, Butchers and News agencies and was used to engaging with authorities in terms of licensing and health and safety issues. 1.
He also required dealing with professionals who provided him with advice on a range of issues.
1. Thomas Balmer, 28th April 2010, a.m. - p8.
The Balmers philosophy was to build a state of the art Care Home that provided the highest quality service offering the very highest levels of care in a personal way. 2.
In short because the quality of other care homes he had visit were so poor this was to be " A home from home". 3.
It was essential for the Balmer Partnership to employ the best and most experienced staff available.
The partnership both advertised and headhunted experienced staff and were very proactive in the local nursing homes association.
There was no question of cutting costs and salaries were higher than most of the competitors in their field.
It is accepted by the Balmer Partnership that the dreadful tragedy in 2004 happened on their watch and whatever the defiance's or omissions of others may have been it is accepted that the responsibility rests with them. 4.
The individuals who were staying at Rosepark were not merely residents who were paying bills but were part of an enlarged family. 5.
The aforementioned is the background to the management and staffing philosophy of Rosepark Care Home.
2. Thomas Balmer, 28th April 2010, a.m., p10, 12th May P91.
3. Thomas Balmer, 12th May 2010, a.m. , p97.
4. Thomas Balmer, 12th May 2010, a.m., p100.
5. Thomas Balmer, 28th April 2010.
It was particularly important for the Balmer Partnership to have an extremely experienced nurse who would be matron to the home. 6. Accordingly a decision was made to employ Sadie Meaney who was an extraordinarily experienced nurse who was qualified prior to joining Rose Park for over 32 years. Because the Balmer Partnership had no professional knowledge in nursing care they depended on Miss Meaney for that.
In addition the home employed over 50 other staff of considerable experience in the various areas of which they were qualified including staff nurses and enrolled nurses and auxiliary nurses some having qualifications as a registered general nurse or a registered mental nurse.
In short every effort was made to staff Rosepark Care Home with the best people available.
6. Thomas Balmer, 12 May 2010, a.m., p144.
CHAPTER 5
RESIDENTS ON 30-31ST JANUARY 2004
NO EXCEPTION IS MADE TO THE INFORMATION IN THIS CHAPTER.
CHAPTER 6
CONSTRUCTION OF ROSE PARK HOME
Thomas and Anne Balmer became interested in the business of care homes as a result of Anne Balmers aunt suffering from Parkinson's disease and requiring a place in a care home.
Prior to 1984 exclusively public authorities dealt with care homes. There after private enterprise allowed others to become involved in the business of care homes.
After looking at various publicly owned institutions and certain private care homes in 1989 Thomas and Ann Balmer considered providing better care in this area.
A decision was taken not to convert an existing building but to buy a piece of land and build a new care home. 1.
An architect required to be identified for the construction of Rosepark Care Home.
Mr Balmer has never cut corners in terms if materials, labour or finances in relation to any part of the construction of Rosepark Care Home. Mr Dickie Architect was recommended to Mr Balmer because of his experience in health care and that recommendation was made from people already in the care
field. 2.
Mr Dickie on the face of it had a depth of experience in architecture and on the face of it standing recommendation from others in the care field area and significant experience; he appeared to have the appropriate skills required for their task ahead.3.
1. Thomas Balmer, 12th May 2010 a.m., p91.
2. Thomas Balmer, 12th May 2010 a.m., p102-103.
3. Thomas Balmer, 12th May 2010 a.m., p104.
Further more Doctor Macdonald who was a health board member made reference to Mr Dickie's first plans in a positive fashion reinforcing the idea that he was the best person for the job. 4.
Mr Dickie was engaged to draw up the plans of the home.
Mr Dickie was engaged to be involved in the submitting of those plans.
Mr Dickie was engaged to deal with building control.
Mr Dickie was engaged to deal with necessary warrants.
Mr Dickie was engaged on the basis of an all-inclusive fee for his architectural services. 5.
Mr Dickie was also engaged to inspect the building as part of the package. 6.
There appears to have been confusion in the distinction between an architect being employed to prepare plans and to obtain a building warrant and a "plan only" arrangement for which a fee was paid and the architect was involved no longer in the general contract beyond that. 7.
It was Mr Balmers understanding that Mr Dickie would be attending on site on a regular basis and that was based on his personal experience with architects in building private houses. 8.
4. Thomas Balmer, 12th May 2010, a.m, p104.
5. Thomas Balmer, 12th May 2010, a.m, p 105.
6. Thomas Balmer, 21th May 2010, a.m, p106.
7. Thomas Balmer, 12th May 2010, a.m,, p106-107.
8. Thomas Balm,er 12th May 2010, a.m, p109.
Mr Balmer did not understand this to be a "plan only" arrangement and that Mr Dickie would carry out inspection of the site as he thought was appropriate. 9.
With the benefit of hindsight it appears that there was confusion between Mr Dickie and Mr Balmer about the precise role that Mr Dickie would play on site.
Mr Balmer would expect Mr Dickie to draw anything, which was glaringly wrong to his attention. 10.
Mr Balmer accepts that the heavy regulatory burden as owner fell upon him at all times. 11.
STAR ELECTRICAL SERVICES STRATHCLYDE LTD
Mr Balmer in terms of the plans required to engage an appropriately qualified company to be involved in the installation of electrics of Rosepark. Mr Balmer was approached by Mr Harvie who introduced himself as the owner of an electrical company called STAR ELECTRICAL SERVICES STRATHCLYDE LTD. Mr Harvie indicated that he had been in Mr Dickie's office and had understood that Mr Balmer was planning a care home. 12.
Mr Balmer understood that Mr Harvie had worked in Law Hospital and had good experience in the health Care field and had experience in matters of care in the past. 13.
9. Thomas Balmer, 12th May 2010, a.m., p110.
10 Thomas Balmer, 12th May 2010, a.m., p113.
11. Thomas Balmer, 12th May 2010, a.m, p115.
12. Thomas Balmer, 12th May 2010, a.m, p117 and p120.
13. Thomas Balmer, 12th May 2010, a.m., p121.
Mr Balmer took the view at face value that both Mr Dickie and Mr Harvey were competent in their area of expertise.
It was understood by Mr Balmer that a ventilation system in terms of the plans had to be installed.
It was further understood that contractors dealing with heating and engineering required to be employed as well.
Mr Harvie did not say at any time to Mr Balmer that he did not have sufficient experience in the proposed installation of the ventilation system at Rosepark Care Home. 14.
In addition a company, VENT-AXIA were involved directly with Mr Harvie in the provision of some components for the ventilation system.
Star Electrical had full access to the plans of the building including the necessity of the provision of fire dampeners. It was their responsibility to install fire dampeners.
It goes without saying that as the responsible person, despite any perceived failings by Mr Ross, Mr Dickie or Mr Harvie, Mr Balmer accepts that responsibility lies with him as a matter of law in relation to these matters.
In terms of the IEE regulations there is no doubt that the electrical installation should have been inspected and tested on completion and the completion certificate issued. It appears that Alexander Ross did not inspect or test the installation and neither did anyone from Star Electrical.
14. Thomas Balmer, 12th May 2010, a.m., p124-p125.
Although Mr Harvie believed the system had been tested He took no steps to find out if Mr Ross had carried out the necessary testing.
Star Electrical were employed as experts with Mr Balmer having no knowledge of these matters and on 14th January 1992 the certificate of compliance of the electrical installation ought never to have been signed by Mr Harvie in the circumstances that it was. Tom Balmer was not aware that the tests had not been carried out.
It does appear with the benefit of Hindsight that a number of difficulties that arose during the construction of the building could have been prevented by greater clarity between the parties in relation to their respective roles.
CHAPTER 7
REGISTRATION
No dispute is taken with the factual position set out in Chapter 7.
Mr Balmer appears to have completed all the appropriate documentation appropriately and timelessly meeting with the officials that he required to meet although there may have been confusion which will be discussed later in the minds of the health board as to the significance of the goodwill letter from the fire service.
CHAPTER 8
THE VENTILATION SYSTEM
There is no dispute about the accuracy of Chapter 8 and it appears on any reasonable view that the workmanship in respect of the installation of the ventilation system was extremely poor.
CHAPTER 9
THE FIRE ALARM SYSTEM
Thomas Balmer employed, on the face of it, a reputable company Comptec Systems Ltd., to install the fire alarm system, the nurse call system, fire extinguishers and appropriate signs for Rosepark. The system was explained in part to Mr Balmer and at least some other members of staff. It may well be that part of the confusion about what to do in the event of the fire alarm going off was Mr Fotheringham informing some members of staff that after they investigated what was showing on the panel, to check the area indicated on the panel and if there was no fire to reset the
alarm. 1.
It does appear that the fire alarm system installed in Rose Park was entirely appropriate for the premises.
It is however accepted that following the change of the fire alarm panel in January 2004 that because there was no significant difference on the face of it between the two panels Mr Balmer did not think that the new panel would cause any confusion. No additional training was organised. 2.
1. Ian Fotheringham, 15th January 2010, a.m.
2. Thomas Balmer, 12th May 2010, a.m., p153.
CHAPTER 10
THE WASHING MACHINES
There is no dispute about any of the information contained in this chapter.
CHAPTER 11
ELECTRICAL INSTALLATION
The information contained in this section is accurate
CHAPTER 12
MAINTENANCE OF THE ELECTRICAL INSTALLATION
It is accepted of course that the means by which a system is maintained in terms of the electrical installation was a matter for the Balmer's as the duty holder and partnership who were the employers.
In relation to the work undertaken by Mr Ross, he was throughout the whole of the period from the beginning of the construction of Rosepark Care Home until the fire in January 2004 in full time employment but from time to time carried out significant electrical work in the care home.
In addition Mr Ross carried out work at the private homes of Thomas and Alan Balmer.
Mr Ross did not carry out the appropriate tests of the electrical installation at Rose Park in accordance of the IEE regulations.
In terms of paragraph 16 there is no basis for any finding to be made as to whether Mr Ross carried out appropriate tests on circuit breakers and there is no requirement for the inquiry to resolve any factual conflict between Mr Ross's account of that matter and Mr Balmer because it is accepted that the appropriate inspection and test regime envisaged by the IEE regulations was not complied with and accordingly although there may have been some visual monitoring taking place this is different from the continual monitoring envisaged by the guidance.
It is accepted that whilst Mr Balmer appears to have set in train a regime of what could reasonably be described as casual inspection it did not satisfy the appropriate requirements of the IEE guidance and it is respectfully submitted that a finding that there was not an adequate regime of inspection and testing of the fixed electrical installation is sufficient to dispose of that issue.
ALEX ROSS DOCUMENTS
There is undoubtedly a degree of confusion about the precise nature and status of these documents Namely Crown Production 215 and Crown Production 583.
Mr Balmer wished Mr Ross to be available to provide electrical cover for the home albeit not 24hr cover and the relationship although committed in writing appear to have been an informal one.
Mr Balmer made it clear that in the event of a critical matter and emergency electrician would be called if needed.
Although the documentation referred to 24hr cover it appears to be the position that Mr Ross would simply do work as and when required although for the purposes of this inquiry this particular matter is a side issue and these documents were never used by the health board or care commission for any purpose at all as a matter of fact.
CHAPTER 13
CUPBOARD 2
This chapter is factually accurate and there are no observations to make on it
CHAPTER 14
CROSS CORRIDOR FIRE DOORS
The information contained in this chapter is accurate and reflects what was regarded as normal and good practise at the time that the cross corridor fire doors were held open on a magnetic device but the doors should be closed in the evening once the last medicine round was finished.
It does appear that the matron Miss Meaney concluded that doors could be left open during the night albeit this was contrary to Mr Balmer's view.
Mr Balmer's view was supported by the notices on the wall in the care home clearly indicating that the fire doors should be closed at night and the training video, which also made it clear that fire doors should be closed in the evening.
If the matron came to a different conclusion it appears that she acted contrary to the notices and to the training video.
CHAPTER 15
BEDROOM DOORS
As the time of construction of Rosepark Nursing Home the bedroom doors were not fire rated at all.
There was however no obligation in terms of building standards at that time for the bedroom doors to be fire rated.
Mr Balmer complied with the request by Mr McNeilly that the perco door closers were not acceptable and that overhead door closers be fitted before there could be a goodwill letter provided for proper registration. 1.
There was significant confusion about whether door closers could be removed or not.
Some door closers were removed at various times by the maintenance man Joseph Clark but only at the request of the resident. There was a perfectly legitimate reason for carrying out this exercise with Mr Balmer's authority because some residents could not physically get in and out of there rooms because of these door closers being in place. 2.
1. Thomas Balmer, 29th April 2010, a.m., p43.
2. Thomas Balmer, 29th April 2010, a.m,, p97
Both Mr and Mrs Balmer discussed this issue with health board inspectors and appeared to have been given advise that these closers could be removed in certain circumstances and in February 1999 the matter was left by the health board with Mr and Mrs Balmer that they would look further in to this issue. The health board did not make any further contact with the Balmer's regarding this matter. 3.
If they had received any request for the door closers to remain fitted they would have complied with it. The conduct of the partnership in these circumstances following the health board inspections was reasonable.
In addition following Croftbank being built in 1996 there was no request from the fire service at that time that door closers required to be fitted.
In 1997 following the Croftbank bedroom extension Mr Balmer complied with the requests made by Mr McNeilly in relation to the issue of automatic door closers.
It is accepted that following the developments at Croftbank there could have been a reassessment of the position of door closers but it must be reasonably borne in mind that whilst the responsibility lay with the duty holder, no professional advice regarding these matters at Rosepark were given to the Balmer Partnership. At no time was advice given to the Partnership suggesting that bedroom doors ought to be changed to fire rated doors within all of the homes.
3. Thomas Balmer, 29th April 2010, a.m., p97
also Ann Balmer, 15th July 2010, a.m., p105 - p108.
In relation to the issue of whether bedroom doors could or should have been left open at night the issue for the partnership was a very difficult one to deal with as it was perceived more of a nursing and care matter left for the individual judgement of those staff at night. Although as often has been said ultimate responsibility lay with the partnership. The care manager with her vast experience did not directly raise the issue with the partnership.
This very difficult issue reveals the tension between issues of fire safety and the desires of the residents some of whom explicitly wanted their door left open during the night because they were frightened.
Closing a door directly against the wishes of a resident could become a serious care issue and the question of whether individual doors were left open or closed being a matter of the judgement of the nurse in charge was reasonable.
It would have been preferable for these requests to be noted in the care plan. However it was not unreasonable for the matter not to be discussed with a residents relatives as the instruction about whether a door be left open or not at night should be a matter for the nurse and the resident if the resident being of sound and mind.
This issue was a difficult one to resolve and a simple assertion that doors always required to be closed at night is too simplistic.
CHAPTER 16
POLICIES
This chapter is accurate factually and in particular there was a clear smoking policy, which was not always adhered to because there was evidence that some staff smoked in the staff's kitchen near the staff's smoking room, which was not permitted.
CHAPTER 17
FIRE SAFTEY NOTICES
It is recognised there were a significant number of fire safety notices on the walls of Rose Park.
In particular it is made clear in a notice next to the fire alarm panel a notice that records that in the event of a fire the person in charge is to dial 999 and then call both emergency contacts named on pre staff telephone lists.
In all other respects chapter 17 is accurate. On the face of it the instruction to staff in the event of a fire is to dial 999.
CHAPTER 18
FIRE SAFETY RULES AND RESPONSIBILITY
It is recognised that Thomas Balmer was the person responsible in the organisation for fire policy. Mrs Anne Balmer and Alan Balmer did not have any role in relation to fire safety.
Mr Balmer as the responsible person had the ultimate responsibility for addressing issues to so with fire safety.
It should however be noted that the matron was given responsibility to communicate the appropriate health and safety policies from this matter.
The matron Sadie Meaney took the view that fire policy was not within her remit. Her approach has to be contrasted with Mrs Boyle the previous matron who said that she had responsibility for training and for making sure there was a regular check on the fire alarm system.
It is unnecessary for the inquiry to determine the roles of various individuals in relation to their responsibility for fire training because it is accepted that there was confusion about the precise demarcation of responsibility about matters of fire safety.
Although there was no attempt by Mr Balmer to avoid his responsibility in relation to these issues, it lacks credibility that the care manager or matron did not apparently see herself as having anything to do with these issues at all even although she would have been in charge of a number of residents and staff at various times without Mr Balmer being present.
It should also be noted that staff nurses had responsibilities in terms of fire safety Isobel queen did not appear to understand her role in relation to taking charge of the situation in terms of the appropriate fire procedure.
It appears that Mr Balmer had attempted to set up a system with the Matron responsible for the formulation of policy, staff nurses having particular responsibility and Joe Clark being given responsibility for fire alarm tests.
With the benefit of perfect Hindsight it is clear that there was confusion about the precise roles that everyone would play in the event of a fire.
CHAPTER 19
THE EMERGENCY PLAN
The procedure to be followed in the event of a fire alarm sounding at Rose Park was as follows:
1. Staff were to gather at the fire alarm panel
2. The staff nurse in duty would take charge
3. The nurse in charge would send two people to the zone indicated on the fire alarm.
4. One of those would come back to report whether it was a fire or a false alarm.
5. If there were a fire the other person would immediately start evacuating from that area in to the next zone and the staff nurse would nominate someone to phone the fire brigade before sending others to assist.
This procedure applied to night shift as well as day shift.
Mr Balmer accepted in his evidence that the fire notices on the wall gave the impression to any reasonable observer that in the event of a fire alarm or in the event of a fire the first thing to do was to phone the fire brigade.
He further accepted that the aforementioned practise differed from the notices.
It should be noted that at that time in the care home industry Mr Balmer understood that the practise at Rosepark was wide spread.
It should be stressed that in implementing the policy that he did at Rosepark there was no down side in terms of business or management or any financial implication whatsoever.
It is accepted that the video urging persons to phone the fire brigade immediately, the staff notice production 656 and the policy manual production 334 were different from the practise that was adopted.
Mr Balmer accepted that there was room for confusion and the clearer course of action would simply have been for staff to have been informed that in the event of a fire what ever else the fire brigade should be phoned immediately.
It should be noted that the procedure adopted at Rosepark had been the procedure since the home was opened. The Balmer's recollection is that Mr McNeilly had given advice about the procedure that they thereafter followed. Mr. McNeilly had undertaken fire safety talks with staff at Rosepark when the home opened. Mr Fotheringham of Comtec had given advice to the same effect.
It also, however seems startling that no one from fire services the care commission or Lanarkshire health board had ever asked any member of staff or indeed the Balmer Partnership to explain what happened in the event of a fire alarm going off.
It is accepted that the appropriate procedure that ought to have been adopted was for the fire brigade to be contacted immediately in the event of a fire alarm being sounded at night.
Whilst there are assertions by the Crown that there were failures to have this part of the emergency plan recorded in writing that is not necessary for the inquiry to determine as it is accepted now as a matter of fact that staff should have been informed to phone the fire brigade immediately in the event of a fire.
CHAPTER 20
FIRE TRAINING AND FIRE DRILLS
It should be noted that as in most things undertaken by the Balmer Partnership there was an attempt to obtain professional advice and communicate that to their staff even if these attempts were not always successful.
Although criticisms and findings of fault should play no part in the determinations in this inquiry it should be noted in their favour that Mr McNeilly and Mr Fotheringham had indeed given lectures on fire safety in the home and that Mr Balmer had arranged for videos to be shown in relation to the issue of fire training.
However it is recognised as in previous chapters that there was confusion between what Mr Balmer and the matron considered to be their roles in relation to the issue of fire lectures and training.
It is instructive to note that there was a video and a questionnaire dealing with the issues that arose in the video and that the overwhelming majority indicated that in the event of a fire alarm going off at night they would phone the fire brigade even although there appears to have been a policy that was different applied to the home at the time.
The health board and care commission did not appear to examine the individual employment and training records of the staffs programme in relation to annual fire safety training. Furthermore neither of these organisations inquired of the care manager what the position was. Staff were also not asked to confirm their understanding of what should be done in the event of fire.
It is accepted that as a matter of fact there were insufficient fire drills carried out at the home especially in relation to the night shift.
The factual information regarding the questionnaire recorded in chapter 19 is accurate.
As Mr Balmer recognised in his evidence with the main focus of the home being on the care of individuals and their comfort and medical care they had taken their eye off the ball in relation to the issue of what would happen in the event of a fire as no one seriously thought that was a real possibility.
Whatever the criticisms may be of others Mr Balmer does not attempt to evade any responsibility for any shortcomings that may have been exposed by the inquiry.
CHAPTER 21
EVACUTATION AND ITS DIFFICULTIES
No exception is taken to the factual information set out in chapter 19 A and although there is a very complex analysis of Janette Midda relating to the estimation of the time taken to evacuate residents in the real world, it seems likely that with the speed of the fire that took place at Rosepark it would seem highly unlikely that all of the residents could have been evacuated safely.
Whilst there is criticism made of the alleged failure of management at Rosepark to address these issues the fact of the matter is that it would have made no practical difference to the events if the evening.
CHAPTER 22
THE MILLENIUM BUG AND THE FIREMANS STRIKE
No issue is taken with the information contained in this chapter.
CHAPTER 23
FALSE ALARMS
This is a difficult area because care homes do have issues in relation to frequent false alarms and Mr Balmer said there were probably ten or more of these every year. 1.
It is accepted that if the fire alarm sounds on the night shift in particular, one should not assume it is a false alarm but should phone the fire brigade.
In relation to the false alarm of December 2003 in relation to the fire in the attic, there was undoubtedly confusion and it is accepted that the fire brigade should have been summoned immediately.
Mr Balmer however did speak to the matron about this matter and did voice his concern to her that the nurse in charge had not called the fire brigade.
The matron did not there after speak to the nurse in charge and this reflects what was previously discussed about the confusion between the role of matron and Mr Balmer as the responsible person.
There undoubtedly was an issue involving at least one member of staff who had called the fire brigade out when the fire alarm had been activated by a toaster. 2.
1. Thomas Balmer, 4th May 2010, p35 and Sadie Meaney, 18th February, p116.
2. Thomas Balmer, 5th May 2010, p32.
It is not entirely speculative to suggest that there may have been a reluctance to call out the fire brigade immediately for fear of their time being wasted if it turned out to be a false alarm.
It is however accepted that there should have been a proper record of all false alarms and not merely some of them.
It is not accepted that when Mr Clark attended at the attic to investigate that this gives rise to the inference that no one really believes in the system.
The logic of this is based on an isolated incident, is extremely suspect.
CHAPTER 24
MR REID'S INVOLVEMENT
Before becoming a self-employed business consultant in 1995 Mr Reid was involved in the bus industry and then in the insurance industry.
He had no specialist qualification in fire risk assessment but he approached the Balmer's and held himself out to be a health and safety and employment expert. 1.
At that time although appropriate risk assessments had to be undertaken no particular type of expert was recommended by any particular body and more importantly there was no legal requirement relating to a particular type of qualification that one would have to have.
Furthermore Mr Reid's template risk assessments were not only not specific to care homes but were out of date.
Mr Reid did not have the experience or competence or qualifications to hold himself out as an expert.
He accepted that he should not have been undertaking this type of work and said that he was a broken man.
In relation to the preparation of production 216 it is not necessary for the inquiry to decide how long Mr Reid spent at Rosepark but the suggestion that he spent half a day at Rosepark should be rejected.
1. James Reid, 16th February 2010, p57 - 59.
Mr Reid attended at Croftbank in the morning and then went to Rosepark and left before lunch.
It is unnecessary to determine whether all of the information in this production came from Alan Balmer or from other sources but the similarities between the Croft Bank and Rose Park risk assessments are startlingly similar.
Of particular concern is the fact that the assessment for both Croftbank and Rosepark did not address the risks for residents of the home.
THE REPSONSE TO PRODUCTION 216
It is not necessary for the inquiry to determine what the response to an incompetent risk assessment should be but in the event that it has to, Mr Tom Balmer's evidence to the effect that he spoke to Mr Reid on the telephone and thereafter passed it to Miss Meany should be accepted.
In particular despite the fact Miss Meany claimed she had never been shown a fire assessment in relation to Rose Park she signed and dated the pre inspection return on 10th December 2002 with question 16 answered yes which was untrue because the risk assessment had not in fact at that date been undertaken.
EARLIER RISK ASESSMENTS
There were other reports produced but not in the form of production 216 in relation to Rosepark but Mr Reid had not retained records of these reports and neither had the management.
CHAPTER 25
CHAPTER 26
CHAPTER 28
CHAPETR 29
CHAPTER 30
CHAPTER 31
CHAPTER 32
CHAPETR 33
CHAPETR 34
CHAPTER 35
CHAPTER 36
CHAPTER 37
CHAPTER 38
CHAPTER 39
CHAPTER 41
CHAPTER 42
NO EXCEPTION TO ANY OF THE INFORMATION CONTAINED IN THESE CHAPTERS
CHAPTER 43
THE CAUSE OF THE FIRE
This is a particularly complex and difficult area and based primarily on the work undertaken by Stuart Mortimore.
The sheriff principal requires to consider the evidence J. F. Lygate. Dr Lygate is the principal investigator for International Fire Investigators and Consultants.
He is a chartered fire engineer and has a PHD in the department of fire safety engineering he is also a chartered surveyor and is a member of the international association of Arson investigators and over the past two decades has personally investigated 550 cases and overseen the investigation of a further 1500 cases. 1.
His experience is extraordinary and he has been involved in smoke control in hotels, fire testing materials and designing fore protection and escape route design systems.
In connection with this inquiry he had all of the crown photographs and videos, reports of Mr Madden and Mr Mortimore and the Strathclyde Fire and Rescue and the Police reports and BRE fire test report. He was also provided with witness statements and attended at fire tests undertaken by BRE. He inspected the home shortly after the fire.
1. Dy. Lygate, 10th August 2010 a.m.
He is of the opinion that a likely cause of ignition and one that should not be discounted is smoking.
Having been made aware of the theory being set out by Mr Mortimore he adheres to that conclusion and in particular maintains that he disagrees that the arcing of cable V caused the fire. He is of the opinion the arcing at cable V occurred as a result of the effects of the fire. 2.
He comes to that conclusion on two strands; firstly the inherent probability that an arc at cable V would actually cause the ignition of the materials at the bottom of the cupboard and the second strand is that Mr Mortimore's insistence of ruling out the possibility that an arc at cable V could be caused as an effect of the fire. 3.
He also explained that this was on any view a difficult investigation. 4.
There is a clear disagreement between Dr Lygate and Mr Mortimore, which focuses on the issue of whether the fire caused the damage to cable V or whether the damage to cable V was caused by the electrical arcing activity at that cable.
Dr Lygate sets out the position of the breakers, which are equipped with a bi-metallic strip.
2. Dr. Lygate, 10th August 2010.
3. Dr. Lygate, 10th August 2010.
4. Dr. Lygate, 10th August 2010.
A bi-metallic strip is two pieces of metal of dissimilar metal which expand at different rates thereby causing the bi-metallic strip to flex and curve and in doing so causes the switch to operate isolating the current.
Bi-metallic strips in circuit breakers are designed to protect against long term over currents normally exceeding 75-80 AMPS.
Typically what happens is the current flowing through the Bi-Metallic strip causes it to heat to about 150 c and then the breakers will operate.
In the course of a fire it takes time for the strip to reach its operating temperature and isolate the current flowing in the circuit that it protects.
Following the fire Mr Mortimore and Mr Madden measured the installation resistance of the Breakers and found that they were off.
Dr Lygate attaches significance to the fact that the circuits were energised in the course of the fire relying on the evidence of Agnes Crawford who is the daughter of Robina Bruns who occupied room number 10. 5.
5. Dr. Lygate, 10th August 2010.
If it be the case that Miss Burns awoke and found that her bed side light which was normally on but was in fact off and got out of her bed and turned the lights on and they came on and then opened the door and saw flames, it indicates that the circuit breaker which supplied the lights had not operated at the point she opened the door.
Dr Lygate is of the opinion that the view expressed by Mr Mortimore of the arcing at cable V causing the fire is a possibility so remote as to be worthy of exclusion. 6.
In addition Dr Lygate is of the opinion that if the fire is associated with a high current flowing in cable V he questions why is it, after the fire is discovered, some 7 hours after the washing machine is turned off. 7.
He thereafter concludes that it appears much more likely that the shorting of cable V on the distribution board which Mr Madden and Mr Mortimore say gives rise to the fire would have occurred when the cable was actually loaded or shortly there after at
9pm. 8.
6. Dr. Lygate, 10th August 2010.
7. Dr. Lygate, 10th August 2010.
8. Dr. Lygate, 10th August 2010.
In relation to the damaged of the edge of the distribution board against which cable V is said to have short-circuited, Dr Lygate is of the opinion that the cause of any parting arc, if there be one could be either contact between the cable conductor and the metal box following mechanical damage to the cable as supposed by Madden and Mortmore or contact had been softened by heat from a fire starting beneath the distribution board. 9,
On that analysis, the fore would easily heat the distribution board to a temperature high enough to soften PVC insulation, which softens at about 220 degrees centigrade and permits the copper core of the conductor to come into contact with the earth metal casing of the distribution board causing a parting arc.
It is instructive to note that in his first report Mr Madden indicated he was of the opinion that a short circuit at cable V was a very low probability event and Dr Lygate is of the opinion that Mr Madden's earlier statement is the more accurate and in his opinion so low a probability to make the alternative hypothesis namely that fire was lighted by a discarded lit cigarette or other material the most likely cause.
It is recognised without any reference to Sherlock Holmes that sometimes in life the most improbable event can be the most likely cause but it is respectfully submitted that on balance, the experience and qualifications of Dr Lygate render his opinion of the cause of the fire the most likely.
It should also be noted that he explained that even freak events in fires could generally be explained.
9. Dr. Lygate, 10th August 2010.
In his opinion Dr Lygate maintains that Mr Mortimore's hypothesis has material defects that do not stand up to proper scientific analysis and it is instructive to note that Mr Mortimore could not entirely preclude an ignition at the bottom of the cupboard. 10.
Dr Lygate importantly is of the opinion that flaming combustion starting at the bottom of the cupboard, could have been caused by any competent ignition source without any pejorative implications for members of staff.
It should also be noted that if a fire were started by a cigarette or match it would have been destroyed by the fire.
A great deal of the crown analysis in this case about the cause of the fire is predicated on the basis that the staff who smoked would be telling the truth about whether they had disregarded smoking materials. 11.
Without being judgemental common sense dictates that it would be unlikely for a person to admit that they were involved in such activity even inadvertently.
10. Dr. Lygate, 10th August 2010.
11. Dr. Lygate, 10th August 2010.
CHAPTER 44
INSULATION AT THE CABLE V KNOCK OUT
It is accepted that the matters set out in (1) would have been reasonable precautions.
Proposed determination number 2 should not be made for the reasons set out by Dr Lygate.
(2)
INSPECTION AND TESTING OF THE ELETRICAL INSTALLATION
Proposed determination 1 is acceptable and should be made.
Proposed determination number 2 is not acceptable and should be made for the reasons set out by Dr Lygate.
(3)
PROTECTION OF MEANS OF ESCAPE
These proposals are entirely appropriate
CUPBOARD DOORS
These proposed determinations are entirely appropriate.
CLOSED BEDROOM DOORS
This is an area that has been previously discussed and there is no simple answer to this issue other than to now note that matters have significantly moved on to the extent that doors should and could be fitted with appropriate mechanisms which would close them automatically in the event that fire alarm sounded.
In general the proposition is accepted that a system that relies on staff action alone is susceptible to human error.
With the benefit of hindsight, it is correct to say that had there been appropriate fitted devices to ensure the bedroom doors were closed in the event that a fire alarm activated, the deaths at Rosepark would have been avoided. Bearing in mind of course, what was discussed in the previous chapters about the practise and standard in the industry and the advice given by the regulatory authorities at the time.
It is of course relevant to note that following the tragedy appropriate devices on the bedroom doors where fitted at Croftbank and Rosepark.
FITTING SMOKE SEALS TO BEDROOM DOORS
These proposals and recommendations are entirely appropriate.
STORAGE OF COMBUSTIBLE MATERIALS
The proposed determinations are reasonable and appropriate.
SUB DIVISION OF CORRIDOR 4
The proposed determinations are reasonable and appropriate.
It should however be borne in mind that no appropriate fire safety professional advice in relation to corridor 4 was given at the time.
FIRE DAMPERS
The proposed recommendations are reasonable and appropriate
CHAPTER 44 PARAGRAPH 4
The proposed determinations in paragraph 1 are reasonable and appropriate.
The proposed determination in paragraph 2 is not appropriate and is highly speculative.
It does not take in to account human frailty and panic, which can arise, in a fast moving emergency situation. It is glib to maintain as a reasonable proposition that if staff at the fire alarm in particular Isobel Queen had acted more promptly, which is in itself doubtful taken together with all the other unusual factors in this case, the deaths would have been avoided or might have been avoided.
The court is invited not to make such a determination.
INFORMATION AT THE ALARM PANEL
Proposed determination 1 is reasonable and appropriate.
Proposed determination 2 is not appropriate standing the considerations mentioned in the previous sub section.
TRAINING AND DRILLS
Proposed determination 1 is appropriate.
Proposed determination 2 is far too speculative and inappropriate for the reasons already given
The analysis provided by the Crown appears to precede on the assumption that had these precautions been taken everything thereafter would have proceeded according to plan.
Human affairs and common sense reveal that is rarely the case
INSTRUCTION FOR ISOBEL QUEEN IN RELATION TO THE NEW FIRE ALARM PANEL
The proposed determination number 1 is reasonable and appropriate one.
The proposed determination number 2 ought not to be made for the reasons given in the previous sub sections.
CHAPTER 44 PARAGRAPH (5)
EARLY INVOLVMENT OF THE FIRE BRIGADE
I have no observations on the proposed determinations in this case but it must be observed that the officers of Strathclyde fire and rescue who attended at the scene did everything in good faith and with dedication and heroism.
There may have been some failings and individual errors but as with so many other individuals in this tragic case everything was done with the best of intentions and any criticism made cannot ignore that basic truth.
CHAPTER 44 PARAGRAPH (6)
A SUITABLE AND SUFFICIENT RISK ASSESMENT
The proposed determinations 1 and 2 are reasonable in the circumstances
The issue of the risk assessment and Mr Reid's involvement has already been addressed and it is important to note Mr Reid's risk assessment, obtained in good faith, did not identify the residents of the home as persons of risk. This was a serious error.
CHAPTER 44 PARAGRAPH (7)
EARLY AND SUFFICIENT RESOURCING OF THE INCIDENT BY THE FIRE BRIGADE
I have no observations to make on this chapter of evidence.
CHAPTER 45 PARAGRAPH (2)
INADEQUATE FIRE TRAING AND DRILLS
These proposed determinations in the circumstances are not unreasonable.
CHAPTER 45 PARAGRAPH (3)
MANAGEMENT OF FIRE SAFETY
This matter has been discussed at length and it is accepted that the proposed determinations are appropriate.
CHAPTER 45 PARAGRAPH (4)
Subject to the discussions and observations earlier regarding these issues the proposed determinations are appropriate.
CHAPTER 45 PARAGRAPH (5)
THE INTERACTION BETWEEN ROSE PARK AND LANARKSHIRE HEALTH BOARD
I have no observations to make on this chapter and consider the proposed determinations reasonable.
CHAPTER 46
DEFECTIVE SYSTEM OF WORK AS REGARDS MAINTENANCE OF THE ELETRICAL INSTALLATION
The proposed determinations here are appropriate and reasonable.
CHAPTER 46
ENFORCEMENT OF THE FIRE PRECAUTIONS LEGISLATION
I have no observations to make on this chapter.
NOTES TO CONSIDER
1. The Balmers accept in full their responsibility as persons in charge for any failures that occurred on their watch.
2. They acted in good faith at all times.
3. They attempted as a partnership to build a state of the art home to provide quality care and comfort for those residents who required it.
4. They employed high quality and well paid staff that were dedicated and professional.
5. At every stage from the building of the home until the tragedy happened Mr Tom Balmer sought opinions and advice from professionals.
6. What occurred at Rosepark care home was a shocking and tragic accident with a number of quite extraordinary events coming together at one point in time, which were highly improbable.
7. It is accepted by everyone that in 2004, standards in the care home industry as regards fire safety, were not as high as they are now.
8. Mr Balmer accepted that with the focus of the home being predominantly on care, a blind spot may have occurred in relation to what seemed the extraordinarily likely event of a serious fire.
9. With video training, fire notices, lectures and highly qualified staff a feeling of complacency may have set in about fire safety but it is accepted and there is no attempt to evade management responsibility for any errors.
10. Following the tragedy every area which has been dealt with in this inquiry has been addressed by the Balmer Partnership and Balmer Care Homes Ltd.
11. A number of other agencies involved in this inquiry appeared to have made significant errors, which they have and are continuing to address.
It should be placed on record the deep sorrow and regret that Mr Balmer, his wife and his son that they wish to express to the relatives of those who were lost and pay tribute to the dignified way in which they conducted themselves during what must have been a difficult inquiry to attend.
Submissions for Strathclyde Fire Board and Strathclyde Fire and Rescue
INTRODUCTION & SUMMARY
First of all Strathclyde Fire Board and Strathclyde Fire and Rescue take this opportunity publicly to express their sincere condolences to the relatives of those who died as a result of the fire on 31 January 2004. The perseverance, fortitude, restraint and bearing shown by those who attended the long weeks of the Inquiry is clearly to be admired and commended.
These submissions will follow the Crown's Submissions in their layout. Comment will be made on whether the Crown's submissions are disputed, agreed or where no position, for or against, is taken.
As was intimated originally, the representation at the Inquiry is on behalf of Strathclyde Fire Board and Strathclyde Fire and Rescue.
Both of these are statutory bodies.
Strathclyde Fire Board is a Joint Board constituted in terms of the Mid and South Western Combined Fire Services Area Administration Scheme Order 1995 (SI 1995/2636) and it is the relevant fire authority in terms of the Fire (Scotland) Act 2005. It has its administrative headquarters at Council Offices, Almada Street, Hamilton. It is responsible for maintaining and administering Strathclyde Fire and Rescue Service.
The fire authority's functions and powers are laid down by statute and are contained within the Fire (Scotland) Act 2005 and the Fire (Additional Function) (Scotland) Order 2005 (SSI 2005/342).
In accordance with Part 2 of Chapter 2 of the Fire (Scotland) Act 2005 the fire authority's principal functions are: - the promotion of fire safety; fire-fighting and in particular the protection of life and property in the event of fires; and, the rescue of persons in the event of road traffic accidents. The authority must carry out these functions within its combined area. That combined area is extensive encompassing the individual areas of twelve Councils.
Formerly, the Service was known as Strathclyde Fire Brigade with its functions and powers being laid down by the Fire Services Act 1947, as was the case at the time of the incident.
Unless the context demands otherwise reference will be made to SF&R as covering collectively both parties.
It may be helpful to summarise the principal points SF&R seek to make.
1. The Court's approach in making Determinations under S 6(1) (c) and (d) must involve some considerations of foreseeability. This is implicitly recognised by the Crown in their Submissions particularly relating to the actions of the Officer in Charge.
2. In any event findings to the effect that there were reasonable precautions or defects in systems of working, even if they imply no blame, are likely to be misunderstood by the families and the public.
3. For these reasons if it is appropriate to make any determination in relation to SF&R it is submitted that it is appropriate to do so under Section 6 (1) (e).
4. While it is accepted that it is wholly legitimate for the Court to consider in detail the actions of Fire Officers on the night of the fire, it is respectfully suggested that the Court must have in mind four particular considerations. First, the evidence of the Officers involved and in particular the Officer in Charge should be treated in exactly the same way as any other evidence in the case. The recollection of the Officer in Charge is just as likely to be affected by the passage of time and the trauma of the incident as any other witness. For example, his "admission" that he did not consult the fire alarm panel is in no way conclusive nor binding on the Court, as is implied in the Crown approach. Second, in considering actions of the Officer in Charge it must be borne in mind that what he was doing was exercising a judgment over a very short period of time, in highly stressful and rapidly altering conditions, without the luxury of time to reflect. Third, the consideration of such judgement in any context implying criticism is likely to have far reaching effects on morale, the approach to risk and ultimately the efficiency of the Service. This consideration looms large in the approach the Court takes in civil proceedings. While it is emphasised again that it is not being suggested that in the context of an Inquiry the Court is in any way precluded from considering the evidence in detail, the approach of the Courts in civil proceedings is relevant at least to the degree of sensitivity that consideration of such issues entails; Fourth the fire at Rosepark was on any view a "unique" or "difficult" fire.
5. The locking of the gates in the lane was a very material factor and was not foreseeable to SF&R. If the gates had been unlocked, it would have made no difference whether the appliances attended at New Edinburgh Road or Rosepark Avenue.
6. In any event the choice of which entrance to use was not obvious, in view of the potential obstruction difficulties in Rosepark Avenue. The access for emergency vehicles had been altered and improved as a result of works undertaken by the Balmers in 2003.
7. Probably Station Officer Campbell did in fact examine the Fire Alarm Panel as show in the video and initially accepted by Sir Graham Meldrum. However by the time of his arrival at the Home the information to be gleaned from any such examination was limited and confusing because a) the wiring to Zones 2 and 3 was burnt out and the most that would be indicated was a fault condition; b) the seepage of small quantities of smoke between compartments would be likely to have activated some detectors in compartments not affected directly; c) the information on the zone card would have been more likely to confuse the position especially in light of the positive information being provided by Isobel Queen.
8. In any event in the circumstances there was nothing unreasonable in Station Officer Campbell accepting the information regarding the initial zone indicated from the alarm provided by Isobel queen, particularly because that appeared to be consistent with the other information available to him. Had he spent time analysing the information from the alarm panel and then scrutinising and interpreting the information from the zone card, only to confirm that it corresponded with the information already given to him by an apparently competent nurse in charge, and if the consequent delay had involved a loss of time in the initiation of search and rescue, he could be subject to criticism for doing what the Crown say he should have done on this occasion. This consideration is an illustration of the point made in paragraph 4 above, namely that he is making a judgement in difficult circumstances.
9. In relation to the resourcing of the incident there were available within fire stations within a reasonable distance sufficient appliances and crews. Each appliance was resourced with a crew of 5, all BA trained, which was superior to the compliment of crew in many English Fire Authorities.
10. The pre-determined attendance at the time was two appliances which was as many as any other Fire Authority would despatch to a nursing or care home fire at the time of the incident. It was a greater turn out than the guidance required (one appliance) and greater than many other Fire Authorities would deploy (sometimes either one appliance or two appliances with fewer crew).
11. In considering the actions of SF&R and its officers it is legitimate to bear in mind that prior to the Rosepark fire there had been no known incident of multiple fatalities in a care or residential home in the UK. The Rosepark tragedy and sadly a number of other later multiple fatality care home fires in England have signally raised the awareness of all concerned to such risks.
12. The Officer in Charge, Station Officer Campbell, was a highly experienced and well trained officer.
13. In attending the fire and exercising his role as Officer in Charge he required to make a number of judgements based on the information he was given and which he gleaned from his own observations. Some of that information may have been subliminally acquired. He may have forgotten some of it. However there is absolutely no evidence to suggest that he was anything other than properly motivated, acting with the best of intentions, seeking the appropriate information and acting upon it. His decisions were judgements taken in what has been described as "battle conditions". That others, in the cold light of day, may disagree with some of those judgements is hardly surprising but in the circumstances is not a basis for criticism.
14. Station Officer Campbell immediately set about the process of "sizing up" and the formulation of a dynamic risk assessment and Operational Plan. Those are essential steps in any command of fire fighting and rescue operations. Those steps take time and particularly in relation to the sizing up of the situation involve another critical exercise of judgement in balancing competing considerations, namely the expenditure of time in gathering and checking information against the urgency of commencing operations where lives may be at stake. The amount of time involved in the process of sizing up is not predictable in advance and should certainly not be subject to criticism in hindsight.
15. The failure of Station Officer Campbell to note the information on the turn out slip to the effect that entry should be made via "Rosepark Gardens" is entirely understandable in view of the fact that he already knew the location of the Home and that his journey time was only 109 seconds during which time he had a number of other tasks to perform (including accessing the VMDS System). In any event had he seen and acted upon that information it is unlikely to have made a material difference because a) the reference to Rosepark Gardens, a locus which did not exist, could have occasioned delay; b) at the point when Station Officer Campbell was ready to commit BA crews (following his sizing up, formulation of Risk Assessment and Operational Planl) the appliances were already in position at the main entrance in Rosepark Avenue - he did not require to await their arrival; and c) even if he had recognised that the reference to "Rosepark Gardens" meant "Rosepark Avenue" and proceeded to the latter address, it is possible that congestion in Rosepark Avenue would have impeded early arrival. In any event Station Officer Campbell's arrival in the foyer at the front entrance was not delayed by the appliance going to New Edinburgh Road. Any subsequent delay was caused by the fact that the gates in the lane were locked contrary to the Home's policy.
16. Leading Fire Fighter McDiarmid did not fail to read the information on the turn out slip. He had longer to do so in view of the journey time from Hamilton. When his appliance arrived he saw the lights of the Bellshill appliance and proceeded to the same entrance where it had attended. It is submitted that was a perfectly reasonable course of action for him to take. Again it is instructive to consider the position if things had turned out differently. Had he proceeded to Rosepark Avenue (assuming he interpreted the turn out slip in that way) he might have found that it was blocked by parked vehicles and that was the reason why the Bellshill appliance had chosen to access the New Edinburgh Road entrance. He could have spent time looking for "Rosepark Gardens". In either event, had he expended time fruitlessly trying to access or find Rosepark Gardens, when he knew that the Bellshill appliance was already in position, and had the consequent delay been critical to the search and rescue operation, he could have been subject to criticism for doing what the Crown say he should have done on this occasion.
17. Station Officer Campbell did treat the residents of the upper level as unaccounted for. His immediate priority was the residents on the lower ground floor for the reasons given to him and on the basis of his own observations about the presence of smoke. However his commitment of the second BA team to investigate the condition of residents on the ground floor was a matter of a few seconds behind the commitment of the first BA team (who were investigating the residents on the lower ground floor).
18. It was not reasonable in all the circumstances for Station Officer Campbell to be expected to enquire of the staff whether bedroom doors beyond corridor 2 were open or closed because a) it is a judgement issue; b) it was not critical to his assessment because he was proceeding on the basis that the residents of these rooms would be protected by the fire door on the other side of the lift shaft (as were those on the foyer side of the lift shaft); c) the extent to which one could rely on the answer to such a question is at the very least doubtful (had he secured an assurance that all the bedroom doors were closed, relied on that information and found later that some were open he could be subject to criticism for doing what the Crown propose he should have done on this occasion).
19. Station Officer Campbell's decision about when additional resources were required was a judgement which he made in good faith in difficult circumstances and was based on the information available to him at the time. There is no evidence whatsoever to suggest he was wrongly motivated. It involved him in resolving a number of competing considerations. Again had things turned out differently and this had turned out to be a simple lift fire which did not present any risk of injury to residents and if six appliances had been committed to it, what would the reaction to that commitment have been, if, say, there had been a domestic fire in the area involving a need for urgent rescue which would necessarily have to be attended to by an appliance from a relatively distant fire station? In those circumstances Station Officer Campbell's commitment of six appliances to Rosepark, if judged premature or unnecessary, might be the subject of criticism.
20. There is no evidence that any earlier rescue would have prevented the deaths of any of the residents. Tragically those residents with doors open are likely to have succumbed before even the call was made to the Service and certainly before their arrival. As far as the other four residents are concerned the evidence does not support the view that earlier rescue would ore even might have prevented their deaths.
21. The actions of Station Officer Campbell on the night were rightly commended in various respects by Sir Graham Meldrum. The actions of the first four BA teams were also commended.
22. In relation to familiarisation visits and risk assessments, the evidence disloses that what SF&R were doing was entirely consistent with the actions of other Fire Authorities. There was no evidence that other Fire Authorities classified care homes of the size or type as Rosepark as "Special Risk". Following the Rosepark tragedy, subsequent fires in England and the advice of Sir Graham Meldrum, SF&R has increased the pre-determined attendance to three appliances and increased the number of familiarisation visits to one per watch annually. It is submitted there is no basis in evidence for the conclusion that either of these measures would have been a reasonable precaution prior to the fire. In any event the fact that the procedure for familiarisation visits now involves each watch (increased from four to five) visiting care homes on an annual basis renders the proposed Crown Determination academic.
23. Inspection of care homes by SF&R was largely dependent on a request being made either by the home itself or more likely by its regulator. The apparent difference between the practice of SF&R and the Fife Fire and Rescue is clearly due to the request made by the regulator in Fife that such inspections should take place. There is no evidence to suggest that the legal responsibilities of SF&R was in any way misunderstood by them. Their position was not clearly appreciated by either Lanarkshire Health Board or the Care Commission.
24. Although SF&R had the power to inspect under the Fire Precautions (Workplace) 1997 and 1999 they did not in fact carry out routine inspections of care homes for the reasons explained, which are submitted to be reasonable and do not imply as the Crown accept any indication of a defect in a system of work. It should also be borne in mind that SF&R's actions were subject to detailed scrutiny by Her Majesty's Fire Inspectorate for Scotland.
Chapter 1:- Introduction
In paragraphs 6.3 and 6.4 of the Crown Submission reference is made to issues of foreseeability of risk and to the application of hindsight.
It is entirely recognised that it is not the function of the Court to determine issues of civil or criminal liability and consideration of the nice issues of foreseeability which may be essential in civil or criminal proceedings is unnecessary.
Having said that it seems that the issue of foreseeability must have a part to play in determining what is a "reasonable precaution" in terms of Section 6(1) (c) or a defect in a system of work in terms of Section 6(1) (d). This was implicitly recognised in the Determination by Sheriff Liddle in relation to the death of Kieran Nichol, 3 June 2010 where he said (Page 9) "In that regard I agree with the comments made by Sheriff Reith QC (et al) that the reference to reasonableness relates to the question of availability and suitability or practicability of the precautions concerned." Practicability involves a consideration of whether a risk is generally foreseeable. See for example Mains v Uniroyal Englebert Tyres Ltd 1995 SC 518 where it was observed by Lord Sutherland. ." If they can establish that no risk or danger could reasonably have been foreseen from the state of the working place, then it might well be arguable that there were no reasonably practicable precautions which they could have taken to prevent the emergence of such a risk".
Potential determinations under 6(1) (c) and (d) relate to precautions or defects in systems of working which might have, respectively, avoided the death or contributed to the death or any accident resulting in the death - in other words they refer to the past and not the future.
If Parliament intended that all considerations of foreseeability were to be banished from the Court's consideration of these subsections it would surely have been easier to have made a specific provision inviting the Court to make a finding that in the future a certain precaution ought to be implemented or considered.
It is submitted that if the Court takes the view that a particular precaution or change in any system of work would be appropriate now (as opposed to at the time of the fire) that such a determination is made under Section 6(1)(e).
To give one example where this is relevant relates to the issue of "Special Risk" which features as a proposed determination in Chapter 44(5) of the Crown Submissions. It will be argued later that the evidence supports SF&R's position that at the time of the fire their actions in this regard were in accordance with the guidance provided; was appropriate to the perceived risk; was in accordance with the practice of other fire authorities and was audited by Her Majesty's Fire Inspectorate. If it is assumed for present purposes that the foregoing is correct, it would seem strange that a Court, against that background, could make a finding that the classification of the Home as Special Risk prior to the date of the fire was either a reasonable precaution or amounted to a defect in a system of work.
For these reasons it is submitted that any such finding (if it is appropriate at all) should appear under Section 6(1)(e) as being a fact relevant to the circumstances of the death.
If the Court takes a contrary view and considers that any such finding is appropriate under Section 6(1)(c) or (d) then there is the risk that the public may misunderstand the Court's Determination to the extent that it would conclude that such a finding implies criticism. It is respectfully submitted that in those circumstances it might be appropriate for the Court to consider stating, in terms, and where appropriate the basis of the decision and in particular that it does not imply any criticism in relation to the actions of SF&R or its officers in relation to reasonable precautions or defects in systems of work at the time of the incident.
It is submitted that this consideration should also be borne in mind if there are to be any determinations relating to individual Fire Officers, such as Station Officer Campbell, as is proposed in Chapters 44(5) and 44(7) of the Crown Submission. Indeed contrary to the tenor of the Crown Submissions in this Chapter the whole thrust of Chapters 44(5) and 44(7), in relation to Station Officer Campbell, appears to be the marshalling of facts which would normally support an averment of "he knew or ought to have known" - in other words attributing blame and liability to him.
Many weeks of evidence were devoted to considering issues which Station Officer Campbell had to respond to in a matter of a few minutes. There is no doubt, even in Station Officer Campbell's mind, that, with the benefit of the knowledge of the nature of the fire and the conditions in the Home which the evidence ultimately disclosed, it would have been appropriate to seek additional resources at the earliest opportunity. There is equally no doubt that at the very early stages of the rescue operation, additional resources could have been profitably employed. If the Court is satisfied that Mr Campbell was acting in good faith and with diligence, and the worst that can be said of him is that he made an error of judgement (and this will be a matter for later submission) it is submitted that it would not be appropriate to make a finding under section 6(1) (c) that a reasonable precaution would have been the earlier summoning of resources, even if the Court is satisfied that that might have prevented one or more fatalities. There is clearly the prospect that such a determination would be misunderstood and again it is submitted that if any such determination is to be made it should be made on the basis of other facts relevant to the circumstances of the death under Section 6(1)(e).
The views of Sheriff Principal Mowat from his determination in the Lockerbie Inquiry are, it is submitted relevant here. In this context he said "It is generally recognised that such an Inquiry is not the proper forum for the determination of questions of criminal or civil liability. This was reaffirmed in the case of Black v Scott Lithgow Ltd 1990 SLT 612. The reasons for such a decision are clear. In a criminal case, or in a civil action based on delict, the accused or the defender is given full notice of the allegations made against him either in the form of a complaint or an indictment or by the written pleadings. In the vast majority of cases he is entitled to hear all the evidence against him before putting forward his defence. In a Fatal Accident Inquiry no such notice is given and the bulk of the evidence, indeed in most cases all the evidence, is led by the Crown with a view to eliciting the facts of the situation surrounding the death or deaths. It is true that one of the recognised purposes of the Inquiry is to ascertain the facts in such a way as to enable the relatives of the deceased to consider whether they provide a basis for a civil action but it is not for the presiding sheriff to make a judgment on that question in his determination. The present Inquiry is, as I have said, a very unusual one and one special feature is that it has taken place some two years after the deaths to which it relates and that one of the organisations represented is the defendant in a civil action elsewhere and so has had some notice of what was likely to be the line of any attack made upon it in the proceedings before me. That does not, to my mind, alter the fact that the procedure of this Inquiry is not designed to enable a proper defence to be mounted against such an attack. Section 6(1)(c) of the Act allows the Sheriff to make findings relating to "reasonable precautions, if any, whereby the death or any accident resulting in the death, might have been avoided". Section 6(1)(d) relates to "the defect, if any, in any system of working which contributed to the death or any accident resulting in the death". It is clear that in some cases a statement that a reasonable precaution might have prevented the deaths carries with it the implication that a certain person or organisation owed a duty to take that precaution and so was negligent. The same situation applies even more clearly to a finding under sub para-graph (d). It is for that reason, it seems to me, that Section 6(3) of the Act provides that the sheriff's determination in a Fatal Accident Inquiry may not be founded upon in any other judicial proceedings.
In that situation, I have come to the view that any finding under Section 6(1)(c) should avoid, so far as possible, any connotation of negligence. Accordingly, it should not contain any indication as to whether any person was under a duty either at common law or under statute, to take the precaution identified in the finding. The same consideration applies to any finding under Section 6(1)(e) of the Act which can relate to "any other facts which are relevant to the circumstances of the death". I recognise on the other hand that it will be impossible in this Note, in which I try to explain how I have dealt with the submissions made to me, to avoid giving some indication of my view as to how far the evidence appears to point towards the existence of a duty to take certain precautions."
These submissions are intended to compliment the submissions made in response to Chapter 44(7) relating to the sensitivity which the Court needs to employ when scrutinising in retrospect decisions taken during operational undertakings and the potential consequences of such scrutiny.
The remainder of the introduction section is not disputed.
Chapter 2:- The Law of Evidence
There is no dispute about the general principles brought out in the Crown Submission.
In supplement of that it is appropriate to mention the issue of delay and its effect on the recollection of witnesses.
In mentioning the delay there is no implicit criticism of the Crown or any other party.
The commencement of the evidence of the Inquiry was nearly six years after the fire.
The scope of the evidence however required issues to be explored which had occurred much earlier - particularly relating to the original setup of the home in 1992 and the various alterations which had taken place. Witnesses were no doubt assisted by the production of contemporaneous documents. However, where witness evidence is not supported by a contemporaneous document it seems clear that the evidence of witnesses should be treated with caution (quite apart from any issue relating to the credibility of particular witnesses).
The matter is compounded by the fact that many of the witnesses would have been aware that they might well be involved in giving evidence for several years prior to their appearance in the witness box. The danger of rationalising their own positions, discussion with other witnesses and false recollection are clearly to be taken into account.
For those closely involved in the tragedy these factors are overlaid with the possibility that their evidence may be affected by a whole constellation of other factors - shock, grief, desire to exculpate themselves or minimise their own involvement, injury to their reputation etc.
In the assessment of the evidence of those such as Station Officer Campbell that process is further complicated by the fact that the information on which his decisions were based could have been acquired "subliminally". Sir Graham Meldrum[4706] agreed with the proposition put to him "Some of the information that would be coming to him would be almost subliminal, that he is taking it in without really appreciating he is getting it?" If that is correct it would be difficult enough to be confident about the facts on which a decision was based if the evidence was heard shortly after the fire. Where the delay between fire and evidence is 6 years the confidence level must be diminished. This is another factor which, it is submitted, the court should bear in mind when considering findings which might be or be perceived to be critical of individual fire officers.
The effect of delay in the hearing of evidence has recently been highlighted in another context in a variety of Scottish cases. The views of McHugh J in Brisbane Regional Health Authority v Taylor (High Court of Australia) were adopted with enthusiasm[4707]. He said "Sometimes the deterioration in quality (of the evidence) is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often then we realize, the deterioration in quality is not recognizable even by the parties. Prejudice may exist without the parties or anybody else realizing that it exists. As the United States Supreme Court pointed out in Barker v Wingo 407 US 514 at 532 (1972) 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody 'knowing' that it ever existed. Similarly it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing the proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose".
It is fully appreciated that the foregoing dicta were in the context of dismissal of actions which were time barred. Such an option would not be open to a court dealing with a Fatal Accident Inquiry, nor would it be in the public interest. It is submitted however that especially in the context of potentially critical determinations the court should have these considerations in mind.
The point has been made in Chapter 1 of the Crown submission and is not disputed that the process of a Fatal Accident Inquiry is not akin to a civil proof or criminal trial.
It follows from that, that the evidence of any witnesses does not take on the significance of the evidence of a Defender in a Proof or an Accused in a Trial. An admission by a Defender or an Accused might be determinative of the position as far as the fact in question is concerned. It is submitted that is not the case in a Fatal Accident Inquiry.
One example may be offered. Sir Graham Meldrum viewed the video recording (Crown label 1506 ) from the incident. The video camera showed the area where the fire alarm was situated. In particular it showed Station Officer Campbell approaching and apparently looking at the fire alarm panel.
On the strength of this Sir Graham concluded that he had looked at the alarm panel for sufficiently long to examine it[4708].
When Station Officer Campbell gave evidence he said that he had not examined the panel[4709]. This evidence was supplied to Sir Graham Meldrum who produced a further report (Crown Production 2113 Paragraph 3.16) which proceeded on the basis that no examination of the panel had taken place and made comments critical of Mr Campbell in that regard.
The point here is that, with respect to the Crown and Sir Graham Meldrum, they are, in effect, treating Station Officer Campbell as an Accused or a Defender to the extent that his evidence is treated as an admission and is somehow determinative of the matter. It is submitted his evidence is to be treated exactly the same way as the evidence of any other witness at the Inquiry. He may well have been wrong in saying that he did not examine the panel. He may have forgotten doing so. His assertion that he did not examine it may be inconsistent with the video evidence. (which was ultimately accepted by Sir Graham in cross examination[4710]
Chapter 3:- Rosepark Care Home Location and Layout
The Crown's Submission conforms to the evidence heard.
In supplement of paragraphs 27 to 29 ("external features") it is submitted that the following was established in evidence:-
1. The gates at the New Edinburgh Road entrance were short gates which were secured by a chain and padlock. They presented no substantial obstacle to a normally equipped fire appliance which has equipment which could readily cut the chain or force the padlock.
2. Between the building and New Edinburgh Road there was a car parking area capable of accommodating about 12 vehicles. This car parking area could have been accessed directly from New Edinburgh Road (assuming the gates were opened). It was in fact more usually accessed by staff driving down Rosepark Avenue and then into the lane. To a casual observer, however, the impression gained might well have been that access to the car parking area would have been afforded by means of the entrance on New Edinburgh Road.
3. The gate in the lane was not present until well after the building was constructed. In particular, it was not present in August 1995 at the date of the publicity photograph[4711] . The date of the fitting of the gates was not established in evidence. In particular it was not established whether the gates were in fact present at the time of any of the SF&R familiarisation visits.
4. The approach to the building via Rosepark Avenue presented potential problems for substantial vehicles such as fire appliances. This is because of the high level of domestic parking in the flats which lined Rosepark Avenue and the apparent propensity of some residents to double park.[4712] The access at the end of Rosepark Avenue to the building had been materially altered in about 2003[4713]. This had improved access.
Chapter 4:- Management and Staffing at the Time of the Fire
The Crown's Submission is adopted.
Chapter 5:- Residents on 30-31 January 2004
The Crown's Submission is adopted.
Chapter 6:- Construction of Rosepark Home
The Crown's Submission is adopted with the following additional comments:-
Planning Permission (paragraph 6 of Crown submission)
The planning permission granted referred to a pedestrian only access from New Edinburgh Road[4714]. Nevertheless a vehicle access was constructed on New Edinburgh Road at the time of the construction of the building. No satisfactory explanation was ever provided for that change. It may be that it explains the subsequent planning applications and perhaps the construction of the gate in the lane [4715]
Compartmentation (paragraph 10.1 of Crown Submission)
The Crown's submission is agreed. In supplement of that it is noted that compartmentation of the stairwells (including the lift area) of buildings has been a standard feature in buildings for many years prior to the construction of the home. Anyone with a general understanding of the construction of buildings would expect a stairwell and lift area to be protected in this way. However, the level or effectiveness of compartmentation has improved over the years. While it would always be expected to protect persons from exposure to dangerous levels of smoke or fumes, the compartmentation would not always amount to a perfect seal. It is quite likely that compartmentation of a stairwell area constructed in the early 1990's or before would not prevent some element of leakage of smoke or fumes into adjacent compartments.[4716] The significance of this is not that it would directly put persons in adjacent compartments in danger but it might permit a level of transfer of smoke or fumes such as would activate sensitive smoke alarms in adjacent compartments.
Chapter 7:- Registration
The Crown's Submission is accepted and supported.
In relation to the Submissions on behalf of Alec Ross it is suggested that a reasonable precaution would have been "to check for the presence of fire dampers as part of the process of inspection by the Fire Brigade prior to the issue of a goodwill letter".
That submission fails to appreciate the context and purpose of the goodwill letter or letter of comfort. First, it is a letter which was sought by the Health Board. If they wanted an inspection - possibly destructive - of parts of the fabric of the building, they should have specified that. Second, the dampers are part of the structure of the building and would not have been visible to a Fire Officer Inspector without removal of false ceilings. Third, the party responsible for checking that the building conforms to the plans is the local authority Building Control Department. Fourth, a Fire Prevention Officer is not a building control officer and does not have his skills or expertise. Fifth, at the time of the inspection Mr McNeilly had the Building Control Certificate which, on the face of it, indicated the building had been constructed in accordance with the plans. Sixth, there was no evidence that any other F&R authority would have carried out such a check. Seventh, where would the responsibilities of the fire authority end if they are not entitled to rely on certification by responsible third parties? Would they, for example, require to inspect extinguishers to ensure they are working? Eighth, to impose such an obligation on the F&R service would be counter productive in that it would blur the line of responsibility.
Chapter 8:- The Ventilation System
The Crown's Submission is admitted and supported.
Chapter 9:- The Fire Alarm System
The Crown's Submission is generally accepted. However in supplement of what is stated the following submissions are made.
Handover of the System (paragraph 9)
In view of the careful notes which Mr McNeilly took[4717] and the absence of any reference to his presence at a handover it is submitted that he was not present. He was asked if he attended a briefing by Mr Fothringham of Comtec but he could not remember. The weight of the evidence suggests that Mr McNeilly would have vociferously objected to any system which involved searching for a fire first and only phoning if a fire had taken place[4718]. If the advice referred to in paragraph 8 was given by Mr Fothringham it is inconceivable that Mr McNeilly, if present, would not have objected to it.
Mr Fothringham's general approach can perhaps be best exemplified by the following evidence[4719] - "With the greatest respect if the building is on fire I am pretty certain you would know about it"
Zone Card (Crown Production 180)
In paragraph 9 reference is made to the zone card which was present at the time of the fire. It is at least doubtful whether this zone card was in use since the fire alarm was installed. It is appreciated that there is evidence to that effect. On the other hand it is clear that this zone card if placed into the panel which was originally fitted by Mr Fothringham the aperture would have the effect of cutting off some or all of the words on the right hand side (hence the warning at the very foot of production 180 - not reproduced in the Crown's Submission) Most witnesses appeared to accept that it was unlikely that a zone card which was not readily readable would have been in place for all those years. If the zone card was not in place for that period the logical time for it to be replaced would have been at or about the time of change over of the panel.
Detectors and Zones
This is dealt with in Paragraphs 12-22 of the Crown Submission. In effect the system created by Mr Fothringham involved "blurring" of the zones and compartments. This meant for example that some smoke detectors in corridors 3 and 4 (which were separated by a fire door and which were obviously intended to be different compartments) were wired to a single zone - Zone 2. Zone 3 also comprised detectors in both compartments (See generally Paragraphs 16 and 17 of the crown Submission).
Whether this lack of correspondence between compartments and zones had any effect on the fire in the Home may be debateable but it is clearly a major safety concern about the effectiveness of the fire alarm system. Rather worryingly Mr Fothringham conceded that his organisation may have been involved in fitting other alarms in similar premises which might be in a similar state. In the course of his evidence he indicated he would co-operate in providing details of any other premises which might have an alarm with similar problems[4720]. It is with regret that it is noted he has not responded to requests to provide that information. The Court may be prepared to consider making this the subject of comment.
Resetting The Fire Alarm
In paragraph 25 of the Crown Submission reference is made to resetting the system. It is submitted that the important feature of resetting is that the data which is transmitted to the panel from the sensors is lost. The panel does not have the capacity to "remember" or store data after the reset. Use of the reset button by persons inexperienced in the operation of the alarm system is therefore potentially dangerous. Early attention to the fire panel would indicate the zone in which smoke or fumes was first detected (and presumably in most cases the location of the fire). If after a few minutes the system is reset and if in that period smoke has spread into adjacent zones then, assuming no damage to the cabling, all the affected zones would illuminate.
In the case of the fire in the Home the problem went much further because during the course of the fire (and prior to the summoning of the Fire Brigade and certainly prior to its arrival) the cabling from zone 3 was damaged which meant that, at best, on the arrival of the Fire Brigade zone 3 would show a fault condition. The significance of examination of a fire panel was the subject of some controversy in the evidence. Early summoning of the Fire Brigade and early arrival followed by examination of the panel might provide useful evidence if the panel is showing one or possibly two zones being activated. However, the activation of a number of zones after several minutes does not necessarily indicate a spreading fire as it would be equally consistent with leakage of small quantities of smoke or fumes from one compartment to another, particularly if that was exacerbated by even momentary opening or closing of doors between compartments.
Chapter 10: The Washing Machines
The Crown's submission is adopted and supported.
Chapter 11: The Electrical Installation
The Crown's submission is admitted and supported.
Chapter 12: Maintenance of the Electrical Installation
The Crown's submission is admitted and supported.
Chapter 13: Cupboard A2
The Crown's submissions is admitted and supported.
Chapter 14: Cross-Corridor Fire Doors
The Crown's submission is admitted and supported. In supplement of paragraphs 3.1 and 3.2 it is submitted that the reason why the fire doors into the stairwell did not have automatic door release devices is that the good practice was, at the time, to seek to preserve the integrity of the stairwell by fire doors which were always kept shut. This is because of the importance of the stairwell as a discreet compartment. This practice would have been generally known to persons such as Station Officer Campbell.
Chapter 15: Bedroom Doors
The Crown's submission is admitted and supported (except in relation to the comments under paragraphs 11 and 14 infra).
In supplement of the Crown's submission at paragraph 3, Mr McNeilly not only insisted the overhead door closers be fitted but he inspected each and every one of the door closers in all the bedrooms.[4721]
In paragraph 11 the Crown's submission states "when Croftbank was built in 1996 the Fire Service issued a goodwill letter without insisting that the bedroom doors have door closers". It is submitted that evidence to that effect should not be accepted by the Court for the following reasons:-
1. It was not a matter which was put to Mr McNeilly.
2. Neither the goodwill letter nor the file in respect of the construction of Croftbank in 1996 was produced.
3. The matter depends entirely on the acceptance of the evidence of Thomas Balmer and Alan Balmer. It is clear that their evidence in this respect (and in many others) was influenced by discussions which they had had over the years since the fire took place. It cannot be said, on any view, that their evidence amounts to two independent sources.
4. The Court should be slow to accept the evidence of either Thomas or Alan Balmer in relation to such a matter, without some corroborating or independent check on their evidence especially when such a check might have been available.
5. The proposition that bedroom doors should not have closers in Croftbank in 1996 on the face of it conflicts with the clear evidence about the requirement for door closers at the time of construction in Rosepark and also conflicts with the vouched and explicit requirement for self closing fire resisting doors at the time of the extension in 1997/1998 (see paragraph 13 of the Crown's submission).
In paragraph 14 of the Crown's submission, in the context of the extension to Croftbank, reference is made to discussions with Mr McNeilly and to the document SHTM 84. It is submitted that the Court should prefer the evidence of Mr McNeilly that he did mention SHTM 84 for the following reasons:-
a. He is a more reliable witness than either Mr Dickie or Mr Thomas Balmer in this respect.
b. Having regard to the general attitude of Mr Balmer and Mr Dickie to fire precautions which would involve expenditure, it is unlikely that they would have accepted a requirement for an increased level of fire protection (over that required in Rosepark and, according to their evidence at least, over that required at the stage of construction in Croftbank), without some reference to the standard or guidance by reference to which Mr McNeilly based his requirement.
Chapter 16: Policies
The Crown's submission is admitted and supported.
Chapter 17: Fire Safety Notices
The Crown's submission is admitted and supported.
Chapter 18: (formerly Chapter 17A) Fire Safety: Roles and Responsibilities
The Crown's submission is admitted and supported.
Chapter 19: (formerly Chapter 18) The Emergency Plan
The Crown's submission is generally admitted and supported.
However, in relation to paragraph 26 the Crown's submission states "The Balmer's believed that the policy had been approved by the Fire Service". It is submitted that even that is not the case. Certainly, the Balmer's gave evidence to the effect that they believed the policy had been approved by the Fire Service but it is submitted such evidence should be treated with caution. It is more likely, it is submitted, that in the years leading up to the fire the issue of the procedure to be followed in the event of a fire was not the subject of any serious consideration by the Balmer's. They were probably proceeding on the basis that, the home being relatively small it would be a straightforward matter to determine whether there was a fire before phoning the Fire Brigade. It is difficult to believe that, prior to the fire, they genuinely believed that the practice had been approved by the Fire Authority. That is because, if the matter was given more than a moment's consideration, it is inconceivable even to a layman, that a Fire Authority would give a general approval to such a policy without a host of qualifications (for example, how long would the search last before the call was made?; what would happen on nightshift? etc). It was when faced with these difficulties that Mr Balmer in his evidence, in effect, sought to redefine the policy by expressing riders to it[4722]. It is submitted in the circumstances that the policy was a policy which was never seriously considered; that the Balmer's never regarded it as approved by anyone; that their evidence that they believed it was approved is the result of rationalisation over the years since the fire took place.
The foregoing is consistent with the evidence of Mr Balmer (referred to in paragraph 26 of the Crown's submission) to the effect that the policy was attributed to the original matron, Mrs Mackie. Although it is accepted that it may be unsafe to rely on Mr Balmer's evidence to the effect that it was Mrs Mackie who introduced the original policy, Mr Balmer's evidence was clear that the policy was in place before Mr McNeilly had delivered any of his lectures.
It is submitted that the policy was a policy, by default: it was perceived that it was easier to check whether there was a fire before phoning the Fire Brigade in case of repeated false alarms. Although a false alarm would not have a direct cost consequence to the home, repeated false alarms each involving the attendance of the Fire Brigade, would clearly lead to disruption and expense as the Fire Authority would ultimately require either the standard of housekeeping or the fire alarm to be improved.
That Mr McNeilly could have given either explicit or implicit support to the policy in the course of a lecture in which he exhibited a video of the type described is inconceivable. Mr Balmer indicated that the video which Mr McNeilly had shown involved the very rapid development of a fire. The video may have been similar to Label 1 for SF&R. In any event the content of the video "shocked" Mr Balmer in terms of the rapidity with which the fire developed. The notion that Mr McNeilly, who was after all an experienced Fire Prevention Officer, would take the trouble to exhibit such a video and then give support to a policy which involved a delay in the summoning of the Fire Service is frankly unbelievable. Even Mr Balmer accepted that the notion Mr McNeilly would exhibit such a video and then give advice to delay the phoning of the fire service was "preposterous".[4723] For those reasons Mr McNeilly's evidence should be preferred.
Chapter 20: (formerly Chapter 19) Fire Training and Fire Drills
The Crown's submission is admitted and supported. In particular, and for the avoidance of doubt, it is submitted that Mr McNeilly gave only three lectures at Rosepark, as indicated in production, namely in November 1992, January 1993 and July 1995. As already noted the procedure of checking whether there was a fire before phoning the Fire Brigade was already in place before the first of these lectures.
If it is necessary for the Court to consider in any more detail the content of these lectures it should be borne in mind that as at the date of the Inquiry, the lectures took place 15 to 17 years prior to the date upon which the witnesses gave evidence.
Chapter 21: (formerly Chapter 19A) Evacuation and its Difficulties
The Crown's submission is generally admitted and supported.
In relation to the evidence of Janette Midda in which she estimates that it would have taken to evacuate the residents, it is submitted that it should be borne in mind that these timings did not purport to take into account the time involved in the event that all or part of the building was smoke logged or that those carrying out the evacuation would be wearing breathing apparatus.
Chapter 22: (formerly Chapter 20) The Millennium and The Firemen's Strike
The Crown's submission is admitted and supported.
With reference to paragraph 6, of the Crown's submission, Crown Productions 334H and 334I were notices produced as a consequence of preparations in anticipation of the Firemen's strike. They included provisions which would only be of assistance during such a strike (e.g. the need for a list of names of people who would be willing to come in and assist if a fire broke out) however, these notices "became the norm" to the extent that they were never replaced and remained in position long after the strike threat was removed.
Chapter 23: (formerly Chapter 21) False Alarms
The Crown's submission is generally admitted and supported.
In supplement, it is submitted that the evidence of Mr Balmer referred to in paragraph 6 of the Crown Submission regarding the alleged incident when the Fire Brigade were called out and were "less than pleased" is not credible. The Fire Brigade were never called to any alarm in the Rosepark Home prior to the Tragedy (see Crown's submission paragraph 5).
Chapter 24: (formerly Chapter 22) Mr Reid's Involvement
The Crown's submission is admitted and supported.
Mr Reid's report (production 216) is a document which is clearly unsatisfactory for the reasons set out in the Crown's submission.
However, the status of the document, in the eyes of Mr Balmer is not significant. If, as Mr Balmer suggested, he reposed considerable faith in Mr Reid's abilities and if Mr Balmer ever considered the document it seems inconceivable that he would not have reacted to the fact that the report quantified fire hazard at the maximum possible rating of 1000.[4724] The impression that the document barely impinged upon the management is further supported by the fact that Ms Meany was unaware of it.
Chapter 25: (formerly Chapter 22A(1) and (2)) Visits to and Re-inspections of Rosepark by Officers of SF&RS under Section 1(1)(d) of the Fire Services Act 1947
It is submitted that a number of matters need to be borne in mind in relation to the issue of Section 1 (1) (d) visits.
1. The building itself was relatively straightforward and modern. A person walking the length of a building who had a reasonable knowledge of building construction would appreciate in broad terms its likely layout. It was obviously of an age where it would have protected or compartmentalised areas. From the point of view of tackling a fire it is a far less complex building than, say, a rambling Victorian building containing the same number of rooms.
2. The short gates on New Edinburgh Road were always present and were apparently generally kept locked. However, whether these gates were locked or not they would not have presented any significant obstacle to a normally resourced fire engine whose crew sought to gain access to the premises via New Edinburgh Road. They provided no such obstacle on the night of the fire.
3. The taller gates in the lane (which were supposed to be left open at night but were locked at the time of the fire) were added on a date not determined in the evidence. It may have been in the year or so prior to the fire. They would present an obstacle to a fire engine which arrived at New Edinburgh Road and sought to gain access to the main entrance in Rosepark Avenue or to a fire engine which arrived in Rosepark Avenue and sought to gain access to that part of the building overlooking New Edinburgh Road. The possibility that these gates might provide an obstruction to fire crews was recognised to the extent that the practice was apparently to leave the gates open at night and that the issue had been raised by Allison Cumming before the fire in a conversation with Matron Meany.[4725]
4. At the time of the fire the sign on the New Edinburgh Road read "Rosepark Care Home 261 New Edinburgh Road 01698 816161. Vehicle Access via Rosepark Avenue." Three matters need to be noted in relation to the sign.
a. The first is that the sign present at the time of the fire was not the original sign. It is clearly a different sign from that at the time of the photograph[4726] . There is no evidence as to when the sign present at the time of the fire was erected.
b. The second matter is the interpretation of this phrase. In light of the events of the fire, some questioning mainly on the part of the Crown, suggested that it meant that access via New Edinburgh Road was in someway unsuitable. It is submitted that a reasonable interpretation of the sign was (particularly in the context that there was a road leading from the New Edinburgh Road entrance to a car park on that side of the building) was merely directory, and implied no unsuitability of the means of access from New Edinburgh Road. The sign would obviously be relevant to vehicles involved in deliveries of materials of goods which would presumably be taken in via the main entrance. Ambulances or other vehicles collecting or delivering residents would also find it convenient to access the premises from Rosepark Avenue. In other words the sign is interpretable as merely indicating that the proprietors prefer that access by vehicles is obtained via Rosepark Avenue.
c. The third matter is that throughout the life of the Home, the Notepaper (including that sent to SF&R) made no mention of the Rosepark Avenue address.[4727]
5. The evidence suggests that from time to time at least there was considerable congestion in Rosepark Avenue. Correspondence from Mr Balmer suggested that vehicles were prone to double park.[4728]
6. The access from Rosepark Avenue into the home was significantly modified in 2003. The extent of the modification was not clear but the access was improved.
7. In practice, if there were no gates in the lane or the gates are left open it would make very little difference in the view of Sir Graham Meldrum, in the context of the fighting of a fire, whether access was obtained from New Edinburgh Road or Rosepark Avenue.[4729] Although the amount of room within the lane was restricted, the evidence generally indicated that a fire appliance could travel the length of the lane. In any event the lane was so short that the Officer in Charge could walk to the front entrance in a few seconds. Access along Rosepark Avenue might well be compromised by parked vehicles and involve a more considerable delay. This should also be seen in the context that the Officer in Charge would require to "size up" before committing the fire crews. This would involve him entering the premises and making observations. During this period the fire appliance or appliances would generally have time to take up the best position (all on the assumption that the lane gates were unlocked).
8. Even if for some reason an appliance was at the "wrong" end of the building from the location of the fire or the point where Fire and Rescue Operations required to be carried out, the dimensions of the building were such that it could easily be accessed. For example hoses would be able to be extended into the front of the main entrance of the home from an appliance stopped in the New Edinburgh Road side.
On the assumption that the lane gates were unlocked, the arrival time of the Officer in charge at the main entrance would be no faster whether the vehicle accessed the premises via Rosepark Avenue or New Edinburgh Road. Because of the narrowness of Rosepark Avenue it is likely that the appliance would, at the very least, require to slow down considerably. No such problems would be encountered in the vehicle drawing to a halt in New Edinburgh Road. As occurred on the day of the incident the Officer in charge could step over the locked gates on New Edinburgh Road. The few seconds it would take to walk or jog the length of the building are unlikely to be any greater than the amount of time that would be lost by the slowing process had access been gained via Rosepark Avenue. There is also the possibility that if there was double parking in Rosepark Avenue or if it was significantly congested, access by the Officer in charge could be faster if access was obtained via New Edinburgh Road.
Categorisation of Rosepark
In paragraph 3 on page 1 it is stated that Mr Kelly did not know the purpose of this risk assessment exercise. That conflicts with paragraph 4 which says "Mr Kelly thought this was part of a process of building up a dossier of material on different places, ultimately for the VMDS system." It is submitted that Mr Kelly was perfectly well aware of the purpose of the exercise.
In paragraph 5 on page 2 it is said that there was no "formal training".
The process in which Mr Kelly was engaged was one of factual gathering of information and was well within his competence.
In paragraph 18 mention is made that Mr Kelly was not aware that there was a category of special risk premises as defined in OTN A6. While that may be correct, Mr Kelly was not there to make a decision as to whether the premises were special risk or not.
With reference to the comments in paragraphs 20 to 25 of the Crown's Submission
reference is made to the response to Chapter 38(5). It is submitted that Sir
Graham Meldrum's evidence about categorisation of Rosepark and special risk is
by no means as straightforward as is suggested in the Crown's Submission. In
this context he said "there were quite a lot of fire services very much in line
with what Strathclyde were doing".
It must also be borne in mind that within the UK there was no previous incident of a care home fire involving multiple fatalities. On the other hand there were frequent - often daily - fatalities in domestic premises.
The evidence indicated that the premises were not of "substantial size" within the meaning of OTN A6; that in the context of a care home it did not present "abnormal risk"; that what Strathclyde Fire and Rescue did was "very much in line" with other fire services; that in any event the whole process was under the scrutiny and audit of her Majesty's Fire Inspectorate for Scotland.
With regard to paragraphs 27 to 31 (means of access to the nursing home in the context of Section 1(1)(d) visits) reference is again made to the response of Chapter 44(5).
RESPONSE TO ADJUSTED CROWN SUBMISSION
At paragraph 69 of the Concluding Observations reference is made to the Submissions to SF&R and in particular to the evidence of Mr Caldwell (the driver of the Bellshill appliance). Referring to the lane access it is said that he thought it "looked tight for his appliance. He also referred to an overhang and the fact that there were ladders on top of the fire engine. That sort of uncertainty cannot be desirable at the time of an incident."
In response to that SF&R submit that Mr Caldwell's evidence was clearly to the effect that if the gate was open he would have driven straight up the side of the building. If it got too tight he would manoeuvre back.[4730] In the event that he manoeuvred back he had plenty of hose reel to access the building even from the car park on the New Edinburgh Road side[4731].
The Crown say that "that sort of uncertainty cannot be desirable at the time of an incident". The level of uncertainty is no greater than the uncertainty which would arise because of the possibility of congestion and double parking in Rosepark Avenue. In this connection Mr Caldwell was asked about the possibility of congestion in Rosepark Avenue and said "yes, because it was tight going through but obviously we got through. But it's always tight, when you are in the schemes. The roads are very tight".[4732]
When Mr Campbell was asked to estimate whether there would have been any difference in the time when Station Officer Caldwell entered the building if the vehicle had initially accessed it from Rosepark Avenue or alternatively if the vehicle had accessed, as it did, the building from New Edinburgh Road his response was that it would be "negligible".[4733]
The Crown's Submission goes onto say that while there may have been congestion in Rosepark Avenue there is no evidence that "that presented itself as a concern to any of the Fire Officers whose evidence is summarised above". It is submitted that Station Officer Falconer did express concerns about the restriction of access in Rosepark Avenue. He referred to Rosepark Avenue as "restricted" and that there would be potential access problems in Rosepark Avenue (which would not have occurred in New Edinburgh Road).[4734] He also expressed the view that there was "plenty" of access for a fire tender in the lane.[4735]
The evidence as a whole indicates that it would be impossible to say in advance whether the access to the premises by means of New Edinburgh Road or by Rosepark Avenue was preferable. Even on the night of the fire, if the appliance had gone to Rosepark Avenue, the difference in time of arrival of Station Officer Campbell at the premises would be "negligible". According to the evidence of Mr Caldwell it is clear that had the gates been open Station Officer Campbell would have arrived at the premises at an earlier time than he would have done if access had initially been gained via Rosepark Avenue.
In paragraph 43 under the heading of "Risk Categorisation of Rosepark" the Crown take issue with the question of whether it is now academic to consider whether Rosepark should have been regarded as "special risk". The Crown accepts that the effect of regarding Rosepark as special risk would have been to increase the predetermined attendance and increase the number of familiarisation visits. The Crown's position is that they seek a determination that the premises should be regarded as "special risk" only in the context of increasing the number of familiarisation visits. The Crown concede that the predetermined attendance was normal for premises such as Rosepark. It is suggested that the issue of whether or not to regard the premises as special risk is academic because, as a matter of fact since the incident, predetermined attendance has been increased and the number of familiarisation visits has been increased, as if the premises were special risk. SF&R do not accept that the premises meet the description of "special risk" for the reasons outlined in their Submission. To categorise them in that way would involve implications for other, types of premises.
In paragraph 45 the Crown acknowledge that the evidence was that a PDA of two appliances was normal for premises like Rosepark. That of course is correct. However, the Crown's concession that it is correct conflicts with their Submission that there should be a determination to the effect that Rosepark should have been regarded as "special risk". Generally, the means by which the predetermined attendance is increased is by the categorisation of premises as "special risk". The concession by the Crown and Sir Graham Meldrum that "there is no evidence otherwise to indicate that a further enhanced predetermined attendance would have been reasonable" is eloquent testimony to the fact that no other Fire Authority categorised care home premises as special risk. If they had predetermined attendance would be greater.
Chapter 26: (formerly Chapter 22B) The Interaction Between Rosepark and Lanarkshire Health Board 1992-2002
The Crown's submission is generally admitted and supported.
In their Submissions (page 17) Lanarkshire Health Board state they were entitled "to reasonably consider that the letter of comfort had been issued by the fire authority because the fire authority (was) satisfied in respect of the fire safety facilities, precaution arrangements. It was entitled to adopt the view that the fire authority would not issue a letter of comfort unless the fire safety facilities, precautions and arrangements were sufficient and suitable".
With respect, the letter of comfort[4736] says what it says. The line taken is reminiscent of the evidence of Mr Lynch.[4737] The letter of comfort is specific in dealing with five particular matters. It contains a clear caveat regarding procedures to be put in place (which were not even in place, never mind inspected, when Mr McNeilly carried out his inspections).
Also at page 20 reference is made to the fact that no Fire Officer noticed the door closer mechanisms were missing or disconnected. Again with respect it appears that the Board still cling to the notion that a visit under Section 1 (1) (d) was some form of fire safety audit. It was not. It was for the benefit of those who might be involved in future fire fighting operations. There was no evidence of Fire Officers inspecting individual rooms. The fire Officers involved in such inspections would usually be Operational Officers and not Fire Prevention Officers.
Chapter 27: (formerly Chapter 22C) Interaction with Care Commission
The Crown's submission is generally admitted and adopted.
In paragraph 8 of the Care Commission's Submissions reference is made to Fife Fire and Rescue attending care homes routinely on a goodwill basis. It is worth noting that these visits were the result of specific agreements between Fife Fire and Rescue and the local Health Boards[4738] (and presumably carried on after the creation of the Care Commission).
In Strathclyde neither the Health Board nor the Care Commission requested such visits nor entered into any agreement with SF&R that they would be undertaken.
In paragraph 9 it is said the "true legal position in respect of fire safety, was not known to Ministers, The Care Commission or the Fire Service." The proposition is refuted on behalf of SF&R. They were fully aware of the legal position.[4739] Any confusion or lack of knowledge on the part of the Commission is entirely a matter of their own making.
In any event the role of the fire authority was precisely understood by the Commission's Team Manager Marie Paterson[4740].
At paragraph 21 of the Submission for the Care Commission it is said that they "understood" the Fire Service carried out attendances at Care Homes as a matter of course. It is conceded by the Commission that the nature and extent of these supposed attendances was not known.
No factual basis for that understanding was advanced in evidence, nor is produced in the Commission's Submissions. No actions or omissions by SF&R caused or contributed to the Commission's misunderstanding.
In paragraph 28 reference is made to "confusion" caused by question 15 and reference is made to the Fire Precautions Log Book. Again it is submitted that any confusion was of the Commission's own making. There was no evidence that any employee of the Commission ever saw the Fire Precautions Log Book.
Chapter 28: (formerly Chapter 23) The Events of 30-31 January 2004
SF&R response to this Chapter should be read in conjunction with their responses to Chapters 44(5) and 44(7).
In paragraph 124 of the Crown Submission reference is made, in the context of the call to the Fire Brigade, to Ms Queen mentioning Rosepark Gardens, rather than Rosepark Avenue. It is submitted that it is likely that if the direction to "Rosepark Gardens" had been noted by either of the officers in charge, it would have caused a degree of confusion and probably delay (on the basis that Rosepark Gardens does not exist but that no member of the crew was able to exclude the possibility that it did exist).[4741] It is likely that if the reference had been noted either there would have been a delay (in terms of searching for a road which did not exist) or alternatively that the Officer in Charge would have attended at the New Edinburgh Road address in any event.
The terms of the call by Ms Queen to the Fire Brigade (crown production 566) are remarkably restrained if the Court accepts that Mr Norton shouted that it was a "big" fire (Crown submission paragraph 79).
In paragraph 149 reference is made to a degree of delay in the mobilization of EO12. That delay was associated with the fact that the crew of EO12 dressed and donned BA equipment before setting off which was in accordance with the guidelines in the Operation Technical Note.
In paragraph 151 the omission of Station Officer Campbell to note the additional information (enter via Rosepark Gardens) should be considered in the light of:-
a. That the journey time was 109 seconds
b. That it is likely that he did not "take in" this information because he already knew the whereabouts of the nursing home, having attended an incident in nearby premises a short time before. [4742]
c. For the reasons outlined above it is likely that if the information had been noted and acted upon, the reference to "Rosepark Gardens" would have occasioned confusion and consequent delay.
In paragraph 152, it is not accepted that the combination of the inclusion on the turnout slip of the erroneous address, supplied by Ms Queen and Station Officer Campbell's failure to notice that address had any consequences for the search and rescue operation for the following reasons:-
1. The arrival at New Edinburgh Road (in combination with the locked gates) meant that Station Officer Campbell required to walk or jog the length of the building and climb over both sets of gates. Although this may have taken a few seconds longer than would have been the case had the appliances gone directly to Rosepark Avenue, it is likely that time would have been compensated for by the fact that attendance at Rosepark Avenue would have taken some seconds longer than attendance at New Edinburgh Road because Rosepark Avenue is narrow and restricted and may have been congested.[4743]
2. That as he walked the length of the building he was able to make observations about the layout of the building which would, in effect, be part of the sizing up process.
3. That the process of sizing up and the formulation of an operational plan continued when Station Officer Campbell entered the building. It was only when he completed that process that he was in a position to order BA crews to enter the building. By that time the two appliances (EO31 and EO21) had positioned themselves in Rosepark Avenue. There was no question of a delay while Station Officer Campbell was waiting for the arrival of the appliances. [4744]
4. In any event Station Officer Campbell and the crews dispensed with the normal breathing apparatus entry control procedures. These procedures would have taken several minutes. Firefighter Caldwell described this graphically - "If you stick to the procedures (breathing apparatus entry control procedures) you've got.... you're talking about another five minutes; people can die in smoke in three minutes. So really we are...we are putting our lives on the line to try and get in there a bit quicker. We're breaking the rules as it's wrote down by the fire service that are there to protect us, but when it's persons reported these rules kind of...all morals take over and you just ... you want to get in there and do what you can do, so that's exactly what happened on the night".[4745]
5. If there was a delay it is submitted that the true cause of the delay was that the gates in the lane were locked. If those gates had been left unlocked it would have made no difference whether the appliances arrived at New Edinburgh Road or Rosepark Avenue. Reference is made to the evidence of Sir Graham Meldrum - "The delay was caused by the fact that obviously the gates were locked, you couldn't get through the gates, then you had to move your fire appliances round to the front, and at the time of the fire that was the situation......" [4746] and in answer to the questions "If the situation at the time of the fire is as you see it now (ie gates open) then it would really make very little difference which access point you went to whether New Edinburgh Road...?". Answer "Well no, because you've got access to the front there, yeah".[4747]
In paragraph 157, reference is made to observations which particular fire fighters made of smoke from the eaves of the building.
It is likely that the smoke from the eaves of the building, observed by fire fighter Buick and Colin Mackie, was intermittent in nature. Reference is made to the evidence of Colin Gray the driver of the Hamilton Appliance who advised that he was in a position where he had a full view of the New Edinburgh Road frontage and the side of the building. He was looking for signs of smoke but saw none. This must have been a few minutes after Firefighter Buick and Station Officer Campbell entered the building.[4748]
In any event the evidence suggests that smoke issuing from the eaves is not inconsistent with the presence of smoke in the lift shaft.
In paragraph 160 it is noted that Mr Buick spoke to the nurse (likely to have been Isobel Queen) who was initially on the phone and did not immediately break off her telephone discussion to speak to him. It is also noted that she apologised for getting them out. Again, that statement is remarkable in light of the fact that by that time Isobel Queen was aware that there were large quantities of smoke in the lift shaft area and particularly if she heard Mr Norton say that there was a "big fire".
In paragraph 165 it is agreed that lift fires are common and can be caused by the lift mechanism, rubbish in the lift or the light fittings in the lift.
It is also to be noted that, in the view of Sir Graham Meldrum, a lift fire "usually burns itself out" [4749]
In paragraph 170 reference is made to the information given to Station Officer Campbell about the location of the fire. It is not clear what is meant in the last sentence of this paragraph of the Crown's submission that there is no "independent" evidence that Mr Campbell was ever given definite information about the location of the fire at all. At that stage neither Ms Queen nor Mrs Richmond had observed a fire. They had only observed smoke.
In paragraph 171 reference is made to the question of whether Mr Campbell was advised that "zone 3" had shown up on the control panel. The evidence whether zone 3 was specifically mentioned was, for understandable reasons, unsatisfactory. Neither Ms Queen nor Mr Campbell had any clear recollection of whether zone 3 was specifically mentioned. What is clear is:-
a. However it was expressed, Ms Queen (and Mrs Richmond) indicated to Station Officer Campbell that the fire alarm's first indication was in the lift shaft on the lower ground floor.
b. By the time the original phone call was made (and certainly by the time of the arrival of the first appliance) the wiring in the alarm serving zones 2 and 3 had already been burnt out and the alarm itself had been reset.
c. Consequently Station Officer Campbell had no alternative other than to rely on the information provided by Ms Queen as to which zone had illuminated first.
d. Against that background and having regard to the apparent competence of Ms Queen it would not be reasonable for Mr Campbell to have spent valuable time in perusing the zone card to check whether zone 3 was in the position indicated by Ms Queen. If he had done so he is as likely as any one to have been confused by the references in the zone card to "ground" and "lower ground".
In any event it is unsafe to conclude that Mr Campbell did not check the fire alarm panel. In saying that it is appreciated that his evidence was to that effect. However, Mr Campbell is a witness like any other and his memory of events generally had clearly been affected by the passage of time and possibly also by the trauma of the incident.
Before the Inquiry commenced Sir Graham Meldrum had been asked to consider various adminicles of evidence including Crown label 1506 being the video recording of the events of the night. The video camera had been more or less trained on the alarm panel. At the time of writing his first report (production 1048) Sir Graham Meldrum took it for granted that Station Officer Campbell had examined the fire panel upon arrival at the incident. In fact the basis for that assumption is perfectly plain. Sir Graham had access to the video recording and concluded that the video recording did show that the fire alarm panel was apparently consulted by Mr Campbell. "But if you look at the video, again as I recall it, that just reinforced my belief that he had looked at the panel"[4750]
Later Sir Graham Meldrum agrees with the proposition that Mr Campbell may not have been fair to himself in saying that he did not look at the alarm panel.[4751]
The time taken to look at the alarm panel in the video was not such as to draw any unfavourable comment from Sir Graham.[4752]
It is submitted that the Court can find, contrary to the evidence given by Mr Campbell, that he did in fact examine the alarm panel.
In paragraph 173 there is a typographical error. It is understood that "persons reported" means that there are people in the building who are not accounted for. (now corrected)
In paragraph 174 it is said that Mr Campbell's belief that there was a fire in the lower level was erroneous and that this ought to have been apparent to him if, "as he should have done", he had checked the whereabouts of zone 3 against the zone card beside the fire panel. It is submitted that this is not a reasonable conclusion to draw for the following reasons -
1. Because of the damage to the wiring which had taken place the indicator light for zone 3 would not have illuminated prior to Mr Campbell's arrival. The fault indicators for zone 2 and 3 may have been illuminated. In any event even if Ms Queen had provided Mr Campbell with the information that the first zone to be illuminated was indeed zone 3 he would have required to have depended on her for that for that information, the alarm having been reset. In these circumstances, why should he not also depend on her for the information that zone 3 indicated a particular part of the building ? We now know of course that the panel had been changed and that Ms Queen was unfamiliar with it. However, there is no suggestion that Mr Campbell was aware of Ms Queen's unfamiliarity with the panel nor the fact that she had not been involved in any fire safety procedures or fire drills.
2. There is at least the possibility if Mr Campbell had "checked the whereabouts of zone 3 against the zone card beside the panel" he would have had the same difficulties as the other witnesses as a result of the ambiguities in the zone card. That would have been especially the case if Ms Queen was telling him that zone 3 referred to the lower floor.
3. If Mr Campbell had undertaken an analysis of the wording of the zone card so that he did reach the conclusion that the first indication was on the ground and not the lower ground floor, that would have taken a considerable amount of time. In this context one need only think of the amount of time taken at the Inquiry to identify and analyse the ambiguities in the zone card.
4. Ms Queen in Station Officer's Campbell's eyes appeared both competent and confident in her position. An officer in charge in these circumstances requires to make a judgment. Clearly if she gave an impression of being unsure about the location of zone 3, Station Officer Campbell would consider whether to investigate that. At the end of the day however the matter is one of judgment. One could easily foresee a situation where Station Officer Campbell could be seriously criticised if it turned out that the information provided by Ms Queen was correct and the commencement of the search and rescue operation was delayed by him perusing and interpreting the zone card. If, say, the fire had been on the lower ground floor and threatened the safety of the residents on that floor and if, say, that the survival of some or all of those residents was dependent on early rescue, then the delay in commencing a search and rescue operation occasioned by checking information provided by competent staff might well be the subject of criticism not dissimilar to that levied at Station Officer Campbell in this case.
In paragraph 175 it is stated that Mr Campbell was aware of various matters at the time when persons reported message was logged at 0450 hours.
He was also aware that:-
a. The building was intended to have a protected area around the lift shaft which, if effective, would prevent for some time the progression of dangerous levels of smoke or toxic gases into adjoining areas.
b. The compartmentation was effective at least insofar as it excluded any significant quantity of smoke moving between the lift compartment and corridor one. He had no reason to believe that the compartmentation would be ineffective in any other area.
In paragraph 180 reference is made to whether Mr Campbell should have asked whether the bedroom doors were open or closed. Reference is made to the evidence of Mr Sweeney, who has vast operational firefighting experience. He said " It's probably not very practical that, that he would think to ask that type of question as the situation began to unfold, and so, to an extent, and you're right about hindsight. With the benefit of six and a half years of reflection and under the forensic analysis of, of these matters, it can often be difficult to place yourself in the position of the officer in charge who didn't know so many things." Mr Sweeney then gave examples of the matters of which Statiuon Officer Campbell was unaware.[4753]
In paragraph 249 reference is made to a statement made by Mr Ross to the effect that Mr Campbell believed the fire to be in the lift area. Comment is then made on the proposition that Station Officer Campbell was unaware of the whereabouts of seat of the fire.
Station Officer Campbell's evidence was that he alerted all the BA crews to be on the lookout for the fire. This would in any event have been implicit in their briefing. No one at that stage had reported back that they had found a fire or seat of the fire. It is wholly consistent with Mr Campbell's position that he anticipated the fire to be in the area of the lift mechanism and it seems quite likely that such a fire may have burnt itself out as suggested by Sir Graham Meldrum.
It should be noted that Station Officer Ross also gave important evidence about the ease with which Rosepark Avenue could become obstructed by parked vehicles. He attempted to move an ambulance which was obstructing his appliance. He was about to move the ambulance when it became obviouis that vehicle was in turn obstructed by a Renault Scenic motor car. Keys for that vehicle were not available with the result that the fourth appliance required to attend at the New Edinburgh Road entrance.[4754]
In paragraph 282 reference is made to the position in room 10 occupied by Robina Burns. In fact we know from her statement made after the fire that she had opened the door in the course of the fire.
RESPONSE TO ADJUSTED CROWN SUBMISSION
In paragraph 152 it is said that it is "of immediate significance that, when he entered Rosepark, Mr Campbell had at his disposal no BA wearers for any kind of operations". It is submitted that the proper procedure is that the Officer in Charge sizes up before committing any of the fire fighters under his command to any involvement in operations. Normally the Officer in Charge enters the building first and undertakes the sizing up operation. This was spoken to by a number of fire fighters including Mr Caldwell.[4755]
In the same paragraph it is said that it is unclear what if anything Mr Campbell gleaned from his walk along the side of the building. It is submitted that is not correct. He noticed, for example, wisps of smoke in a room adjacent to the lift shaft. He was in a position to observe the layout of the building generally[4756].
In paragraph 154 it is said that the VMDS system was not functioning and Mr Campbell did not consult the Section 1 (1) (d) information on board the appliance. The Crown's position appears to be that Mr Campbell could squeeze quite a number of activities into the 109 seconds involved in the journey. He attempted to access the VMDS system but could not make it function. According to the evidence of Station Officer Falconer that task alone would have taken "all of that two minutes".[4757] Realistically, the only way in which Mr Campbell could have accessed the hard copies of the 1 (1) (d) information would have been after he arrived at the home, with consequent delay in commencing sizing up.
In paragraph 157 the Crown say "it is unclear what significance should be attached to the point made by SF&R that the evidence suggests that smoke issuing from the eaves is not inconsistent with the presence of smoke in the lift shaft". Station Officer Campbell's position is that he did not in fact observe smoke from the eaves. Some fire fighters did observe it and others did not, even although they were looking for it. The point about the Submission is that even if Station Officer Campbell had observed smoke coming from the eaves that would not be inconsistent with the smoke and seat of fire being contained within the lift shaft area.
In paragraph 165 reference is made to the evidence of Sir Graham Meldrum about lift fires burning themselves out. It is said that the comment was made "in the context of describing the unlikelihood of the fire at Rosepark being such a fire". It would respectfully appear that the opposite is the case. It is implicit in the evidence generally and in the evidence of Station Officer Campbell that lift fires occur fairly frequently and that there is a finite amount of combustible material in the lift shaft or lift motor room. That is entirely consistent with the position which confronted Station Officer Campbell.
In paragraph 170 reference is made to the alleged absence of independent evidence that Mr Campbell was ever given definite information about the location of the fire. It is assumed that a distinction is being drawn between the location of smoke on the one hand and the seat of fire on the other. It is true that none of the nurses spoke to identifying where the fire was. However, Mr Campbell was proceeding on the assumption that the lift shaft area was a protected area. The presence of heavy smoke logging in the lift shaft area at what Station Officer Campbell assumed to be a very early stage in the development of the fire was entirely consistent and only consistent with the seat of the fire being in the lift shaft area.
In paragraph 171 reference is made to proposition (a) on page 50 of SF&R's Adjusted Submission. This is to the effect that Ms Queen and Mrs Richmond indicated to Station Officer Campbell that the fire alarm's first indication was in the lift shaft on the lower ground floor. It is submitted that that is broadly what Station Officer Campbell was told. Perusal of the video indicates that they were clearly pointing to the lower ground floor.
In the same paragraph the Crown also accepts that Station Officer Campbell would have required to rely on Ms Queen for information as to which zone had illuminated first. There would be no immediate way of verifying that information. However the Crown goes on to say that he should have verified the information that zone 3 referred to a particular part of the building. It is submitted that that is a counsel of perfection. The Court is asked to consider the implication of that criticism. Station Officer Campbell is approached by an apparently competent nurse in charge who tells him that the fire alarm has gone off and that the first indication was in zone 3 which indicates a fire in the lower ground floor at or around the lift area. He has absolutely no reason to doubt that information and it is consistent with the information which he himself has gathered partly from his own observations (wisps of smoke in a room adjacent to the lift shaft area on the lower ground floor and the presence of smoke in the lift shaft area on the upper level). He is informed that persons have been sent to the lower ground floor to check on the status of residents. He approaches the fire alarm, certainly for enough time to check what lights are showing and what lights are not. Zone 3 is probably showing a fault condition. The Crown say at this stage he is expected to carry out an examination of the zone card. Presumably during that time when he is carrying out an examination of the zone card rescue operations are halted. If he examines the zone card it makes reference to zone 3 being on the ground floor. Station Officer Campbell had approached the building from the New Edinburgh Road side where the "ground" floor was actually the lower ground floor. He may have misinterpreted the card. However, assume for the moment that he identified that zone 3 is the upper of the two floors and is therefore not consistent with the information provided by Ms Queen. There would then inevitably follow a discussion with Ms Queen. It is difficult to be clear about the content and duration of that discussion. She may have "stuck to her guns" or she may have conceded that she may be wrong. Either way a period of time would have elapsed. It is submitted that what in fact Station Officer Campbell did is that he attempted to verify both pieces of information by committing his first BA team to go to the lower ground floor and establish the position, closely followed by his second BA team who were directed to the ground floor.
In paragraph 174 reference is made to the evidence of Sir Graham Meldrum who it is said "emphasised that people in fire situations were under enormous pressure and that the information they gave had to be verified where possible". It is submitted that is precisely what Station Officer Campbell was attempting to do in relation to the fire alarm indication. He verified the information which was given to him by committing the first BA crew to go to the area identified by Ms Queen.
Reference is made to the evidence of Mr Campbell[4758] where it is said that he did not appear to experience the sort of difficulties implicit in the submission for SF&R (i.e. difficulties in the interpretation of the zone card). Reading that passage of evidence it is clear that he is being asked a hypothetical question (on the basis that he did not actually ever examine the zone card while at the locus). He was also, as a preliminary to the question clearly referred to the distinction between the ground floor and the lower ground floor. It is submitted that passage of evidence does not particularly assist the Court. Reference is made to Station Officer Campbell's evidence when he was asked in some detail about the zone card. It is clear that the zone card does not identify which zone the lift enclosure falls into.[4759]
In paragraph 175 Mr Campbell's evidence that he had no reason to believe that the compartmentation would not be effective in any other area is criticised. It is submitted that Mr Campbell's evidence, properly understood, is that he was developing a hypothesis. The starting point was that he would have expected and his observations suggested that the compartmentation was effective because it was successful in excluding significant smoke ingress into corridor 1. However, his hypothesis was tested by the dispatch of BA teams into the other parts of the building. He was also operating on the hypothesis that the fire was in the lift compartment again he thought to test that hypothesis by the use of BA teams.
Chapter 29: (formerly Chapter 24) The Position of Bedroom Doors on the Night of the Fire
The Crown's submission is admitted and supported.
Chapter 30: (formerly Chapter 25) The Location of the Fire
The Crown's submission is admitted and supported.
Chapter 31: (formerly Chapter 26) Development of the Fire: The BRE Work
The Crown's submission is admitted and supported.
Chapter 32: (formerly Chapter 27) Development of the Fire from Ignition to Flaming Combustion
The Crown's submission is admitted and supported.
Chapter 33: (formerly Chapter 28) BRE Test 1: A Reasonable Representation of the Fire at Rosepark
The Crown's submission is admitted and supported.
Chapter 34: (formerly Chapter 29) Development of the Fire: The Role of Aerosols
The Crown's submission is admitted and supported.
Chapter 35: (formerly Chapter 30) Development of the Fire: The Role of Furniture
The Crown's submission is admitted and supported.
Chapter 36: (formerly Chapter 31) Development of the Fire: The Evidence of Mrs Burns
The Crown's submission is generally submitted and supported.
Two matters require to be noted. First the opening of a door raises the possibility that at this stage she ingested a quantity of noxious fumes.
Second, it is emphasised that after she closed the door she opened the window.
Chapter 37: (formerly Chapter 32) Development of the Fire: Corridor 3
The Crown's submission is generally admitted and supported.
It is certainly implicit in all the evidence that the opening of the fire door between corridors 3 an 4 as a result of the pressure effects from the explosion of aerosols would be an extremely unusual occurrence.
Chapter 38: (formerly Chapter 33) When did Ignition Occur?
The Crown's submission is admitted and supported.
Chapter 39: (formerly Chapter 34) Smoke and Toxic Fire Gases
The Crown's submission is generally admitted and supported.
Chapter 40: (formerly Chapter 34A) Effects of Toxic Atmosphere on the Occupants of Corridors 3 and 4
The Crown's submission is generally admitted and supported.
Chapter 41: (formerly Chapter 35) Where and When Each Death Took Place
The Crown's submission is admitted and supported. It is to be noted that all those who died at the locus probably died at or about the time the call was made to the Fire Brigade (at 04:37:32) and certainly before the arrival of the first appliance (04:42:12)
Chapter 42: (formerly Chapter 36) The Cause or Causes of Death of Each Deceased
The Crown's submission is generally admitted and supported. However in relation to Robina Burns three factors need to be borne in mind:-
1. In the course of the fire she opened her door and would thereby inevitably have been exposed to toxic gases.
2. After closing her door she opened the window which would inevitably have reduced her exposure to toxic gases while in the room.
3. She was further exposed in the course of the rescue.
Chapter 43: (formerly Chapter 37) The Cause of the Fire
The Crown's submission is generally admitted and supported. It is to be noted that the conclusion is consistent with the report by Assistant Divisional Officer Douglas Naismith[4760]. The Report was produced relatively shortly after the incident. Unfortunately due to ill health ADO Naismith was not available to give evidence at the Inquiry.
Chapter 44(1): (formerly Chapter 38(1)) Reasonable Precautions (1) Insulation at the Cable V Knockout
The Crown's submission is admitted and supported.
Chapter 44(2): (formerly Chapter 38(2)) Inspection and Testing of the Electrical Installation
The Crown's submission is admitted and supported.
Chapter 44(3)(a), (b), (c), (d), (e) and (f): (formerly Chapter 38(3)) Protection of the Means of Escape
It is to be noted that in the assumptions referred to in Chapter 44(3)(e) ("Subdivision of Corridor 4") are essentially the assumptions made by Station Officer Campbell, namely that the subcompartmenation had been properly done and remained effective.
Further, in Chapter 44(3)(f) ("Fire Dampers") reference is made to paragraphs 8 and 9. It is agreed that Station Officer Campbell's operational plan was based on information given to him by the staff which led him to believe there was a fire situation at the lower level. It is accepted that when he instructed the persons reported message Station Officer Campbell was satisfied that the smoke was contained in the area of the lift and that he had adequate resources to deal with the incident (although he was manifestly keeping that assumption under review).
With regard to paragraph 9 it is accepted that if Ms Queen and Mrs Richmond had observed smoke logging in corridor 3 they would have reported that to Station Officer Campbell. It is further accepted that had he been advised at an earlier stage that there was smoke logging in corridor 3 this would have caused him to review his operational plan. It is accepted that it is likely that this review would have included the summoning of additional resources at an earlier stage.
Chapter 44(4): (formerly Chapter 38(4)) Reasonable Precautions: Prompt, Accurate and Effective Action by Staff;
Information at the alarm panel
Training and Drills
Instruction for Isobel Queen in relation to the new fire alarm panel
The Crown's submissions are generally admitted and supported.
In particular, in 44(4)(a) reference is made to paragraph 2 which provides "the zoning information at the fire panel was ambiguous and laid out in a confusing manner. For someone looking at that document and trying to work out where a fire was by reference to the descriptions there was a potential for confusion."
The potential for confusion might equally have arisen with Station Officer Campbell. In his case the potential for confusion was greater because he was being informed by Ms Queen that the location of the fire was in the lower floor. He had no reason to doubt that. As will be submitted elsewhere, the notion that the would carry out his own examination of the zone panel (taking it on trust that zone 3 had been the first to be exhibited) while at the same time being told by an apparently competent nurse that zone 3 related to the lower level is, it is submitted, extravagant.
Chapter 44(5): (formerly Chapter 38(5)) Early Involvement of the Fire Brigade
Please also refer to the response to Chapters 28 and 44(7) of the Crown's Submission
In relation to the proposed determination no issue is taken with determination 1.1 and 1.2.
The proposed determination at 1.3 is "classification by Strathclyde Fire and Rescue Service of Rosepark Care Home as "special risk" under Operational Technical Note index number A6 such that each watch at Bellshill Fire Station visited it annually."
With respect to the Crown it would seem that there is a confusion between, on the one hand, whether a building qualified as "special risk" in terms of Operation Technical Note A6 and, on the other hand, whether the criteria contained within Operational Technical Note A6 were wholly appropriate.
The definition of special risk contained within Operational Technical Note A6 involves two elements. The home required to be of "substantial size" and present an "abnormal risk". It is submitted that the home did not match either criterion.
As far as size is concerned the evidence indicated that it was smaller than average and that there existed many homes of substantially greater size.
It was suggested that it presented abnormal risk on the basis that many of the residents were non ambulant. Most nursing homes would on this basis present "abnormal risk". In any event the population of residents within the home varied from time to time and the notion that the home, judged on this basis, would come in and out of the "special risk" category would be fraught with practical difficulties. It must be borne in mind in this context that a section1 (1)(d) visit is a snapshot in time and that the condition of residents might - and indeed did - vary between visits.
Sir Graham Meldrum in his evidence effectively conceded that the attitude of Strathclyde Fire and Rescue in not categorising such premises as "special risk" was not out of the ordinary. "There were quite a lot of fire services very much in line with what Strathclyde were doing".[4761]
He accepted that the definition of a large care home was always a matter of local interpretation.1
Sir Graham Meldrum also conceded that the type of building - whether it was modern or not - was a factor and that Rosepark, superficially was a modern purpose built building which would be a factor that would "downplay" the element of risk associated with it.[4762]
In relation to "special risk", the practice of Strathclyde Fire and Rescue was no different from the practice of other fire authorities. After the fire, as Sir Graham accepted every fire authority reviewed its procedures in light of the Rosepark fire.
Strathclyde Fire and Rescue, also revisited its procedures and, partly as a result of the recommendation by Sir Graham, increased the predetermined attendance for appliance to three appliances and increased the number of familiarisation visits to one per watch. Although they did not classify the premises as "special risk" the difference is academic.[4763]
Reference is also made to the evidence of Mr Sweeney. He gave cogent evidence to the effect that the building was neither of substantial size nor did it present abnormal risk. It should be borne in mind that at the time of the fire there had never been a multiple fatality fire in a nursing home.
The issue of whether the building was to be regarded as "special risk" is, it is submitted, in any event academic in light of the action that Strathclyde Fire and Rescue have taken as a result of the incident. Although not classified as special risk care homes now have a pre-determined attendance of three appliances and the subject to a familiarisation visit by each watch annually - effectively five visits per annum[4764].
It is suggested that, as a matter of causation, had this precaution been taken it might have avoided the deaths of Isobella MacLachlan, Margaret Gow, Robina Burns and Isobella MacLeod. That contention is disputed.
All the evidence indicated that the layout of the premises would have been reasonably obvious to an experienced Fire Prevention Officer such as Mr Campbell if he walked the length of the building as he did. For the reasons already outlined, arrival at Rosepark Avenue would not, in the result, have effected the time of which the rescue operation commenced.
In paragraph 1.5 there is a proposed determination "for Station Officer Campbell of EO31 to have read and taken account of the additional information about access contained in the turnout slip received at Bellshill Fire Station and Hamilton Fire Station". Again, it is suggested that had that precaution been taken the deaths of the four individuals referred to above might have been avoided.
Both parts of the proposed determination are opposed for the following reasons:-
1. Reference is made to the introductory comments in the response to Chapter 44(7).
2. In the case of Mr Campbell a journey time of 109 seconds (in which he was also endeavouring to access the VMDS) would have afforded very little opportunity to read the turnout slip. He had little time and opportunity to have read the slip, especially where he knew where he was going.
3. Had Station Officer Campbell read and taken into account the information on the turnout slip it is equally likely, it is submitted, to have caused confusion and delay as a result of an attempt to search for an address which did not exist.
4. Had Station Officer Campbell read the information and worked out that it was a reference to Rosepark Avenue and directed the vehicle to Rosepark Avenue, it is likely, because of the narrowness and congestion within Rosepark Avenue that the arrival time of the appliance at the front entrance would be some moments behind the actual arrival time at New Edinburgh Road. Station Officer Campbell's arrival time at the home may have been no different.
5. There was in fact no delay as a result in the commencement of rescue procedures as a result of the attendance of the vehicles at the New Edinburgh Road entrance. Station Officer Campbell was absolutely clear in his evidence (and was not contradicted or challenged) in saying that once he had completed "his sizing up" and the formulation of his operational plan he did not require to wait for the attendance of either appliance at the Rosepark Avenue entrance. (It may be that the Crown would criticise Mr Campbell for taking too long to size up and formulate his plan but that is a different matter which would be in any event disputed). In this context, the Crown have virtually ignored the requirement to "size up" and formulate a plan, despite the fact that every single witness, qualified to opine on the matter, agreed that it was essential that these steps take place before crews are committed to either fire fighting or search and rescue. In the Crown's submission under the heading "delay and its consequences" paragraphs 4 and 5 provide "EO31 initially attended at New Edinburgh Road at 0442 hours. It did not reach Rosepark entrance until 0449 hours. There was a further six minute delay to the commencement of fire fighting and search and rescue operations resulting from the attendance of EO31 at New Edinburgh Road. This is calculated by a reference to the seven minute time lapse occurring between 0442 and 0449, less one minute to allow for the appliance to enter Rosepark Avenue (which it would have had to have done in any event)". It is submitted that such a submission wholly ignores the requirement of sizing up, dynamic risk assessment and formulating the operational plan which was taking place during that period. The time taken to size up and formulate the plan is not a "delay" but an essential part of the fire fighting and search and rescue operation.
In paragraph 1.6 the Crown propose a further determination "for leading fire fighter MacDiarmid of EO12 to have read and taken account of the additional information about access contained in the turnout slip received at Bellshill Fire Station and Hamilton Fire Station".
Such a determination is also opposed. The position regarding Leading Firefighter MacDiarmid is not the same as that of Station Officer Campbell. Station Officer MacDiarmid's evidence was quite clear that he had read the additional information. His journey time was such that he had longer to do so than Station Officer Campbell. However, as he approached the locus he saw the lights of EO31, the Bellshill appliance and elected to go to the same entrance as EO31 had done. It is submitted that that is a perfectly reasonable course of action for him to follow. For all he knew at that stage EO31 might have encountered difficulties in going to the Rosepark Gardens/Avenue entrance because of one of a number of factors which might include congestion within Rosepark Avenue. Again, in a submission which has application in a number of branches of the Crown case where Fire Officers are criticised, if matters had turned out differently Mr MacDiarmid might well be criticised for taking the course of action which the Crown now say he should have taken. If for example, Rosepark Avenue was blocked by a double parked vehicle and EO31 had discovered that fact and moved onto the alternative entrance in New Edinburgh Road, Leading Firefighter MacDiarmid might well be criticised if, having seen EO31 at New Edinburgh Road, he nevertheless proceeded to Rosepark Avenue, encountered the same obstruction involving his attendance at New Edinburgh Road being delayed.
If the Court considers that there was any significant element of delay as a consequence of the appliances initially attending at New Edinburgh Road, rather than Rosepark Avenue, it is submitted that the true cause of that delay was the fact that, contrary to normal procedures and good sense, the gates in the lane were left locked. If they were not locked Sir Graham Meldrum accepted that it would make little difference whether the vehicles attended at one entrance or the other.
In Paragraph 1.7 the Crown propose the following determination:- "For EO31 and EO12 to have attended at Rosepark Avenue".
The foregoing is opposed for the reasons outlined above.
At Paragraph 2 the Crown propose the following determination:- "Had these precautions been taken they might have avoided the deaths of Isobella MacLachlan, Margaret Gow, Robina Burns and Isobella MacLeod."
This proposed determination is also opposed (in so far as they are associated with the proposed determinations above) for the following reasons:-
1. As outlined above the arrival of the first two appliances at New Edinburgh Road did not, as a matter of fact, make any difference to the time when search and rescue operations were initiated.
2. The basis for saying that the deaths of the four individuals might have been avoided are calculations undertaken on the carboxyhaemoglobin levels.
3. The carboxyhaemoglobin level is a function simply of time exposed and the exposure dose. A short exposure to a high dose can have the same effect as a long exposure to a low dose.
4. The calculations by Professor Kinsella and Professor Purser substantially leave out of account:-
a. The consequence of earlier rescue is that the individuals concerned would have been brought into an atmosphere (in corridor 3 or corridor 4) which was substantially comprised of toxic gases and would thereby have acquired a "dose" of a very high level.
b. In fact, because of their relatively "late" rescue the dose ingested in the course of rescue would be much lower because the atmosphere, by that time, was clearing.
c. In the case of Robina Burns she opened her bedroom door in the course of the fire and would thereby have been exposed to, potentially, a high dose of noxious gases.
d. In the case of Robina Burns she opened her window and thereby would have diminished the level of noxious gases within her room.
e. The evidence also indicated that even with all the information available Firefighters would have a dilemma in the case of persons with closed doors. Professor Purser said "so you have the dilemma that the earlier you remove somebody from the room, the less the dose they received in the room, but the worst conditions are likely to be in the corridor...later on they have received a bigger dose in the room, although the corridor may have cleared to some extent".[4765]
f. Professor Purser went onto express the view that there would be a "significant dilemma" for a fireman attending the scene and that it would be a very difficult judgment to make.[4766]
It is submitted that with these uncertainties the position regarding survival if there had been rescue just a few minutes before is, at most, speculative.
RESPONSE TO ADJUSTED CROWN SUBMISSION
In paragraph 13 comment is made on the narrowness and likely congestion in Rosepark Avenue and it is said that this was not spoken to by Colin Gray, the driver of EO12. It was however clearly spoken to by fire fighter Caldwell who was the driver of the Bellshill appliance. Reference is made to his evidence as noted above.
The extent of the congestion in Rosepark Avenue was also spoken to by Station Officer Ross.
Under the heading of "Delay and its Consequences" at paragraph 4 it is said that "a period of six minutes elapsed before BA wearers were available to be deployed by Station Officer Campbell". It is to be noted that Station Officer Campbell spent this time sizing up and formulating his Risk Assessment and Operational Plan. His evidence was to the effect that by the time he intended to deploy BA wearers until they were in fact available. There was accordingly no delay.
Under the heading "Outcomes of Earlier Rescue of those Rescued alive from Rosepark", reference is made to the evidence of Professor Purser, particularly in relation to his supplementary report[4767] and his evidence when he was recalled.[4768]
In the course of the supplementary evidence it is clear that much of his evidence is based on areas outwith his expertise. He was engaged in an exercise of trying to estimate the dose of toxic gases which the four individuals would have ingested if they had been rescued earlier when conditions in corridors 3 and 4 were more severe. He agreed for example that the crucial issue of the amount of time taken to take someone out of a corridor would be "speculative".[4769]
The degree of smoke resistance which Isabella MacLeod's door (room 11) would have provided is also said to be speculative.[4770]
It is also clear from his evidence that the amount of smoke and toxic gases in corridors 3 and 4 at the hypothetical rescue times was unclear.[4771] Ultimately he agreed with the proposition that fire fighters would have two competing considerations - clearing the corridor for the survivors and preventing recurrence or the building up again of the fire.[4772]
In summary Professor Purser's calculations leave out of account the consequences that early rescue would have resulted in the individuals concerned being introduced into a toxic atmosphere because he could not make an accurate calculation of the degree of exposure which would have occurred had earlier rescue been attempted (and that implies no criticism of Professor Purser).
Chapter 44(6): (formerly Chapter 38(6)) A Suitable and Sufficient Risk Assessment
The Crown's submission is admitted and supported.
Chapter 44(7): (formerly Chapter 38(7)) Early and Sufficient Resourcing of the Incident by the Fire Brigade
General Comments
By way of introduction, Strathclyde Fire and Rescue made available all of the resources required in the sense that there were sufficient appliances and crews available at Fire Stations in Bellshill, Hamilton, Motherwell and Coatbridge. There was no suggestion of any criticism of the number of appliances available and indeed each appliance was manned by a crew of 5, all BA trained, which was superior to the crew compliment in many English Fire Authorities. The number of appliances initially dispatched was one more than some Fire Authorities would dispatch at that stage. There was no evidence that any other fire authority would initially dispatch a greater number.
The incident was also under the control of a highly experienced and trained Station Officer (Mr Campbell). There was no suggestion that his training and experience were anything other than first class.[4773]
He had an unfettered discretion as to when and what level resources he should employ. That was a matter for his judgment in "battle conditions" based on information assimilated over a very few minutes.
It is also worth emphasising that all the evidence indicated that the process of fire fighting and search and rescue commences initially with the Officer in Charge "sizing up" the position which is the assimilation of information on which he can base his Dynamic Risk Assessment and Operational Plan. Clearly, that is an essential part of the process if the risk is to be avoided of the fire fighters themselves being injured or ineffective (which apart from any issue of injury to the fire fighters would defeat the whole object of the exercise).
Each part of that process - sizing up, risk assessment and Operational plan - will take a period of time - time when there is immense pressure on the Officer in Charge, particularly if he has any concerns about the safety of residents.
The amount of time that the process takes is, it is submitted, not always predictable. It will involve some inspection and examination and also involve obtaining information from witnesses. To criticise the amount of time taken to size up the situation is, it is submitted, a clear exercise in the wisdom of hindsight. No account is taken of Station Officer Campbell's view that some information had to be "dragged out" of the nurses.
Equally, to say that the process should have been extended by the obtaining of
other pieces of information is, it is submitted, a counsel of perfection.
The role of the Officer in Charge is, in the case of a potentially serious fire, an incredibly difficult one where he is balancing a variety of considerations, in very difficult conditions and over a very short period.
The notion that certain information could have been extracted within about one minute can be seen in the context that all the witnesses who were involved in that exchange of information gave evidence at the Inquiry over periods which were measured in days.
The formulation of the Dynamic Risk Assessment and Operational Plan also
involve a degree of reflection. Station Officer Campbell's position - it is
submitted the correct one - is that his plan was always subject to revisal as
and when new information became available to him.[4774]
It is clearly in the public interest that the actions of a Fire Authority, particularly in the case of a serious fire where there has been significant loss of life, should be examined to see whether or not there is any means by which they may be improved should such a situation arise again.
Neither Mr Campbell nor Strathclyde Fire and Rescue seek to avoid that analysis. But that is rather a different matter from a critical and microscopic examination of the basis of an exercise of judgment, which took place over a very short period in very difficult conditions.
Most of the decisions of Court regarding the scrutiny of such evidence has taken place in the context of civil actions for damages and, in most cases, the Court has held that no duty of care exists. It is immediately appreciated that that is not the consideration for this Court. However, the general principle, it is submitted, appears that from the Court of Appeal case of Mulcahy v Ministry of Defence 1996 Q.B.732. That was a case where there was a claim for damages by a serving soldier in an artillery regiment for injuries sustained in the course of "battle conditions". The Court was clearly slow to countenance such a situation and quoted with approval the views of Dickson J in the Shaw v Savill case 66C.L.R344 "It would mean that the Courts could be called upon to say whether the soldier on the field of battle or the sailor fighting in his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a Court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy."
The Court went on to recognise a further strand of authority relied on and that
was in relation to actions against the police. The Court quoted with approval
dicta by May J in Hughes v NUM 1991 I.C.R669 "in my
judgment...as a matter of public policy, if Senior Police Officers charged with
the task of deploying what may or may not be an adequate force of Officers to
control serious public disorder are to be potentially liable to individual
Officers under their command if those individuals are injured by attacks from
rioters that would, in my judgment, be significantly detrimental to the control
of public order. It will no doubt often happen that in such circumstances
critical decisions have to be made with little or no time for considered
thought and where many individual officers may be in some danger of physical
injury of one kind or another. It is not, I consider, in the public interest
that those decisions should generally be the potential target of a negligence
claim if rioters do injure an individual officer, since the fear of such a
claim would be likely to affect the decisions to the prejudice of the very
tasks which the decisions are intended to advance."
It is emphasised that it is not being submitted that, in the context of a Fatal Accident Inquiry, the Court is in any way precluded from considering the actions, even in the heat of the moment, of someone in the capacity of an Officer in Charge. However the basis behind decisions such as Mulcahy seem to emphasise that a minute examination with the benefit of hindsight of actions taken in an emergency situation and the attribution of blame (whether in damages or otherwise) may be against the public interest for the reasons brought out. The basis for the submission is that, as already noted, the Crown seek to justify their proposed determinations on the basis of facts which can only be understood as amounting to averments of foreseeability (and therefore blame) against Station Officer Campbell.
The Crown propose a variety of determinations in relation to Station Officer Campbell (examining the fire alarm and zone card in order to verify the information; treating the residents of the upper level bedrooms as unaccounted for; confirming with the staff of Rosepark whether the doors to the bedroom beyond corridor 2 were opened or closed; instructing the message "make pumps 6" at 0450 hours when the persons reported message was sent). The following general comments apply to these proposed determinations and also to the determinations proposed in respect of Station Officer Campbell and leading Fire Fighter MacDiarmid referred to in Chapter 44(5).
As a preliminary, it is to be noted that the first three proposed determinations in Chapter 44(7) would inevitably involve the expenditure of some additional time in the course of the "sizing up" operation undertaken by Station Officer Campbell. It is perhaps ironic in that context, as already noted, that the Crown refer to the period of time during which the sizing up operation took place as "a delay" but that of course is in the context of blaming the Fire Officers for some of the deaths because of the arrival of the fire appliances at New Edinburgh Road rather than Rosepark Avenue. When it comes to the content of the sizing up procedure and the formulation of the operational plan, the Crown in effect say that Station Officer Campbell should have spent more time assimilating information from other sources.
Putting that consideration aside for the moment it is submitted that the proposed determinations critical of Mr Campbell and leading officer MacDiarmid should be seen in the following context:-
1. At 31 January 2004 there was no known incident in which there had been multiple fatalities in a care or nursing home. There had been incidents where there had been individual fatalities in such a home but that is no different from the incidence of domestic incidents where a fatality takes place. Nursing homes were not designated under the Fire Precautions Act 1971 (in contrast to hotels and boarding houses). Sir Graham Meldrum and others were able to tell the Court about numerous multiple fatality fires which had taken place in hotels and boarding houses. He was unaware of any incident involving multiple fatalities in a care home. Such information would, at least in a general way, be known to an experienced Fire Prevention Officer.
Why it was that the fire safety record of Care Homes was much better than in hotels (prior to the Fire Precautions Act) was not explored in evidence but presumably one factor is the presence of staff throughout the night who are awake and who would, normally, be in a position to deal with a developing fire.
2. The overall majority of call outs to care homes were "false alarms". The evidence of the witness Victoria Neill who indicated that in one year there were 150 call outs to care homes but only three of those call outs involved a fire and those three fires were minor. It is not suggested for a moment that such an experience led to any degree of complacency (indeed that is contradicted by the fact that EO31 made special efforts to attend the locus quickly). However the very low incidents of serious fires against the number of call outs, coupled with the fact there had been no previous multiple fatality incident in a Care Home would be yet another factor to be taken into account by the Officer in Charge.
3. The fire in this case was described by various witnesses either as unique or "difficult" it is true that some of the factors which will be referred to are, in themselves, not uncommon but it is submitted that the combination of these factors together justifies the use of the word "unique". The factors include:-
a. The fact that the gates along the lane were locked.
b. That dampers had been omitted from the ventilation system allowing smoke to move from one compartment to another
c. There was no stopping of service entry points between fire compartments.
d. There was no effective compartmentalisation in the attic area and there was an open hatch in the lift shaft area
e. That the alarm zones overlapped the compartments.
f. That the alarm zone descriptions were ambiguous and confusing.
g. That the alarm panel was changed several days before the fire without staff being informed or trained.
h. There was no effective staff training in fire procedures.
i. That the staff had never participated in a fire drill.
j. There was no evacuation plan.
k. That bedroom doors were routinely left open overnight.
l. That the only coherent procedure, followed on the occasion of the fire, was that there was an attempt to identify that there was a fire before the Fire Brigade were called, resulting in a delay of nine minutes.
m. That the fire commenced in cupboard which contained a number of aerosol sprays which led to a very fast developing fire of short duration which was likely to have self extinguished before the Fire Brigade were called or certainly before they arrived.
n. That the staff had no idea how to interpret alarm information and had reset the alarm before phoning the Fire Brigade.
o. That the staff misinterpreted information from the alarm and advised the fire authority both in the initial call and subsequently that the fire was in the lift shaft.
p. That the staff and in particularly the nurse in charge, Isobella Queen, gave an impression of competence but lack of concern to the extent that she apologised for calling the Fire Brigade out.
4. Station Officer Campbell was an experienced well trained officer. His experience involved both operational and fire prevention duties. He was properly and correctly motivated. There was absolutely no issue of bad faith. There was no improper or inappropriate motive for him to do anything other than to carry out his duties properly. He was "doing his best".
Unlike many other witnesses, although Station Officer Campbell had difficulty remembering certain details he did not flinch from accepting responsibility. He did not take refuge in any claim of lack of training or experience. Nor did he suggest that he was in any way pressurised from within the Fire Service to act in a particular way. In particular, he was under no pressure not to summon additional resources when he considered it necessary.
All the witnesses agreed that ultimately the role of the incident commander involved the exercise of judgment.
It is submitted that the Court should be wary of subjecting the actions of an Officer in Charge, taken over a few minutes in the stress of a "difficult" fire to microscopic examination and, ultimately criticism. In saying that, if the evidence indicated that an Officer in Charge was improperly trained, inadequately experienced or was acting with some improper motive, such scrutiny would be proper. However no such considerations arise in this case. At the end of the day, as already stated, Station Officer Campbell was properly trained, instructed and experienced and was acting with the best and proper motives. He exercised his judgment. He provided an explanation for the exercise of that judgment in evidence.
The notion that a correctly trained, properly motivated and experienced officer in charge may have his actions as a result of a serious fire subjected to minute scrutiny and in effect held to blame for what could be seen, at worst, as a genuine error of judgment is, it is submitted, not in the public interest. It could have a dangerous effect on morale and potentially lead to a risk averse culture. It also has at least the potential for unfairness of the officer in question, particularly when his evidence is taken many years after the event, when he has the potential of having been traumatised by the event and when the information on which he based his views may, to some extent, at least, may have been acquired subliminally. Reference is made generally to the evidence of Mr Sweeney and Sir Graham Meldrum. Moreover some information was probably made available to Station Officer Campbell as a result of the nurses pointing or gesticulating with their arms. That would be very difficult to remember.
As has already been noted, the purpose of the FAI is not to apportion blame. However, it would be unfortunate not to note that the actions of Station Officer Campbell and other firefighters drew praise from Sir Graham Meldrum.
Station Officer Campbell's efforts in some respects were commended by Sir Graham Meldrum "in respect of the use and deployment of the resources he had available at this incident, Station Officer Campbell exercised command and control in an effective manner. He was positioned at a point that ensured he was available and visible as the incident commander. The liaison with the other emergency services was carried out to a good standard. Once the reinforcing appliances arrived he deployed the extra BA teams to good effect." Later he states "on arrival at Rosepark Station Officer Campbell made his initial tactical plan on the basis that all room doors were closed. If that had been the case then I have no doubt his plan would have worked". [4775] In his evidence Sir Graham also credited Station Officer Campbell with foresight as he was making his way to the Home.[4776]
Sir Graham also said[4777] "there was nothing wrong with the judgement that he made to send people, his initial breathing apparatus crew, to the lower ground floor and almost at the same time get a crew to investigate the ground floor.....Yeah nothing wrong with that. Its a judgement"
In regard to the firefighters generally he said[4778] "I wish to commend the firefighters who attended this incident for the excellent work that they carried out in a professional manner throughout the early stages of this fire...They were working under very difficult circumstances.... The members of the first four BA teams to be deployed managed to carry out a number of rescues. They had to carry people over a considerable distance in order to reach a place of safety. They also had to make difficult decisions in order to give priority to who they would rescue first....This was a difficult search and rescue incident during which the firefighters used their experience and training to good effect"
Turning to the detail of the proposed determinations the following submissions are made:-
Proposed Determinations
1.1 For Station Officer Campbell to have examined the fire panel and zone card in order to verify the information he had obtained from staff about the possible whereabouts of the fire.
This has already been dealt with in the response to Chapter 23. As already noted, if matters had turned out differently and the fire was on the lower ground floor but search and rescue was delayed because Station Officer Campbell was studying the fire alarm panel and zone card in order to verify the apparently reliable information given by Ms Queen, he could be subjected to criticism.
1.2 For Station Officer Campbell to have treated the residents of the upper level bedrooms beyond corridor 2 as unaccounted for until the position was established otherwise.
It is submitted this is exactly what Station Officer Campbell did. For reasons fully explained by him he regarded the residents in the lower ground floor as a first priority. He committed BA team 1 to ascertain their status. However, BA team 2 committed only a few seconds after BA team 1 was in effect instructed to ascertain the status of the residents on the upper floor.
1.3 For Station Officer Campbell to have confirmed with the staff of Rosepark whether the doors to the bedrooms beyond corridor 2 were open or closed. Station Officer Campbell formulated his plan not on the basis of whether the doors to the bedrooms were open or closed but on the basis that the fire doors in the corridors and particularly the fire door linking bedroom 3 with the lift enclosure would have prevented significant ingress of smoke. He had already noted the fire door between corridor 1 and the lift shaft was effective. He had no reason to form the view that it was ineffective (and in fact he was correct to the extent that the problem of smoke spread was due to the absence of dampers and the failure to seal service entry points).
1.4 For Station Officer Campbell to have instructed the message "make pumps 6" at 0450 hours when the persons reported message was sent.
This is opposed on the basis that essentially Station Officer Campbell was exercising a judgment. Others may disagree with that judgment. However, it was a judgment, made in good faith by an officer who was experienced, well motivated and alert to the issues. It is possible that because of the absorption of subliminal information some of the information which gave rise to that judgment may not have been evident at the Inquiry.
Reference is made to the evidence of Mr Sweeney who has at least equal operational experience to Sir Graham Meldrum. It is submitted his evidence is much more in line with the pressures likely to be placed on an Officer in Charge in these circumstances.[4779]
RESPONSE TO ADJUSTED CROWN SUBMISSION
Reference is made to the section of the chapter which is headed "Response to Submissions of Strathclyde Fire and Rescue".
In paragraph 1 it is said "the whole object of impartial public inquiry is to get at the truth, to expose fault where fault is proven to exist and in all cases to see to it as far as humanly possible that the same mistake, whether it arises through fault or any other reason is not made in the future". It is submitted that it is not part of the function of the inquiry to attribute fault.
In paragraph 3 it is said that according to the evidence of Sir Graham Meldrum the additional time involved in Station Officer Campbell making the enquiries suggested by him would not be considerable. With respect, it is submitted that it is impossible to determine, in retrospect, what time would have been expended in the obtaining of this information.
In paragraph 6 the Crown expressly disclaim any attempt to suggest that there was bad faith on the part of Station Officer Campbell or that he had any improper or inappropriate motive to do anything other than carry out his duties properly. In effect it is recognised that Station Officer Campbell was carrying out a judgement.
At no point do SF&R say or suggest that the Court is in any way precluded from an examination of the detail of the actions of its Officers even in "battle conditions". However, it is submitted that the Court should have regard to the rationale behind cases such as Mulcahy v Ministry of Defence 1996 QB 732 (referred to at page 83 of SF&R's submission).
While it is fully appreciated this and other cases were claims for damages, it is submitted that the effect on individual fire fighters is the same whether the issue arises in the context of a claim for damages or a Fatal Accident Inquiry. It is submitted that these considerations should be borne in mind by the Court in the way outlined in paragraph 4 of the SF&R summary (page 2).
Chapter 45(1): (formerly Chapter 39(1)) Defective System of Work as Regards Maintenance of the Electrical Installation
The Crown's submission is generally admitted and supported.
Chapter 45(2): (formerly Chapter 39(2)) Inadequate Fire Training and Drills
The Crown's submission is generally admitted and supported.
Chapter 45(3): (formerly Chapter 39(3)) Management of Fire Safety
The Crown's submission is generally admitted and supported.
Chapter 45(4): (formerly Chapter 39(4)) Management of the Construction Process
The Crown's submission is generally admitted and supported.
Chapter 45(5): (formerly Chapter 39(5)) Interaction between Rosepark and the Health Board
The Crown's submission is generally supported.
Chapter 46(1): (formerly Chapter 40(2)) Enforcement of the Fire Precautions Legislation
It is not in dispute that Rosepark had not been inspected by and Rescue Services in terms of Regulation 10 of the Fire Precautions (Workplace) Regulations 1997.
It is not suggested, as the Crown's Submission is understood, that there was any obligation to enforce.
Regulation 10(1) of the 1997 Regulations places a duty on every Fire Authority to enforce the "Workplace Fire Precautions Legislation".
That term is defined in Regulation 9 of the 1997 Regulations as meaning "measures which are to be taken or observed in relation to a risk to the safety of employees in case of fire in the workplace".
While it is accepted that the evacuation of non residents could have implications as far as the safety of employees is concerned, it is perhaps curious that the question of the enforcing authority responsible for enforcing the 1997 Regulations and the 1999 Management Regulations in relation to non employees did not feature significantly in the Inquiry. The responsibility to enforce in relation to non employees must rest with another statutory agency. In terms of Section 18(1) of the Health and Safety at Work Act 1974 it is the duty of the Health & Safety Executive "to make adequate arrangements for the enforcement of the relevant statutory provisions except to the extent that some other authority or class of authorities is by any of those provisions or by Regulations under subsection (2) below made responsible for their enforcement. In effect the enforcement authority under the 1997 and 1999 Regulations in relation to non employees would be either the Health and Safety Executive or the local authority. No evidence indicated that either of these authorities carried out any inspection of Rosepark under either set of Regulations. "
It is also to be noted that the provisions of the 1974 Act in Sections 18 to 20 are similar to the provisions in Regulation 10 of the 1997 Regulations. They both create a duty to enforce legislation and a power to appoint inspectors.
In relation to the evidence of Hugh Adie (paragraphs 31 to 41 of the Crown's submission) Mr Adie confirmed that attempts were made to liaise with the Care Commission on its formation; that there was local contact with the Fire Safety Officers previously employed by the Health Board; that it took some time to obtain from the Care Commission the contact individuals; that thereafter there was a liaison with him at local level[4780].
Mr Adie also confirmed that there was a Legislative Committee associated with the Chief Fire Officers Association that dealt with Fire Safety matters. This eventually led to the proposal to set up the memorandum of understanding[4781] .
For the reasons outlined in the Crown's Submission it is submitted that the absence of any inspection under the 1997 Regulations at Rosepark did not indicate any unsafe system of working.
RESPONSE TO ADJUSTED CROWN SUBMISSION
In paragraph 120 the Crown submits that the absence of "historical evidence of fires or fatalities" in care home premises appears to have advised the view that nursing homes did not represent a high fire risk. That is not quite correct. The evidence before the Inquiry did not touch on the incidence of fires within care home premises. The Inquiry does not know how many such fires took place. However, the evidence indicated very clearly that there were no multiple fatality fires in care homes prior to Rosepark. In other words there may (and probably was) the usual number of fires but none of these resulted in multiple fatalities. It is submitted that is an important distinction because, as the Crown say, familiarisation visits are not concerned with the likelihood of fire. They are concerned with the situation of what is likely to take place if a fire occurs. The evidence suggested that, historically, when fires occurred in nursing homes they were not associated with multiple fatalities.
In this context it is also worth bearing in mind that if SF&R had, prior to Rosepark devoted considerable resource to care homes (which would necessarily require to be diverted from some other activity) they might be the subject of criticism on the basis that diversion of resources to an area which had not been associated with serious losses is inappropriate. Of course it is immediately recognised that following the Rosepark fire and other later serious care home fires that situation would have changed.
In paragraphs 123 and 124 reference is made to the interpretation of the 1997 and 1999 Regulation and in particular to the issue whether they applied only in an employee/employer situation. The Crown's position appears to be that it accepts that the responsibility for enforcement only arose in an employee/employer situation but that this would indirectly involve an assessment of the risk to employees as a result of any obligation they had to evacuate the premises in the event of fire. While it is accepted that the evacuation obligations of an employee could be relevant to a risk assessment of the safety of that employee, of much greater relevance would be the body upon whom the enforcement obligation lies in relation to non employees. That body had the direct obligation to enforce in these circumstances. No evidence about that was led at the Inquiry.
Chapter 46(2), (3) and (4): (formerly Chapter 40(3), (4) and (5)) Certificate of Completion; Checking of Documentation; Competence of Risk Assessors
The Crown's submission is admitted and supported.
In view of the reduced incidence of inspection for completion certificates; the importance of the integrity of fire and smoke compartments; the difficulty in determining whether compliance has occurred after construction is substantially complete; and the transfer of onus to the person in control (or employer) in terms of the Fire (Scotland) Act 2005, the Court might consider recommending that in future the smoke and fire integrity of compartments (which would include but is not limited to the presence and effectiveness of dampers, if to be fitted) is the subject of expert certification, in the same way as the electrical installation is certified.
Chapter 46(5)(A): (formerly Chapter 40(6)(A)) Development Since the Fire: The Immediate Aftermath
In relation to paragraph 12 Mr Adie made it plain that significant attempts were made to acquire knowledge of the Care Commission procedures in order that there could be effective liaison with them.[4782]
Chapter 46(5)(B): (formerly Chapter 40(6)(B)) Development Since the Fire: Strathclyde Fire & Rescue Service
The recommendations of Sir Graham Meldrum have been substantially implemented. Again, it is emphasised that prior to the date of Rosepark Fire there had been no fire in a care home in the UK which involved multiple fatalities. Sir Graham's recommendations were partly as a result of the Rosepark fire but also other fires which occurred after Rosepark (particularly St David's Nursing Home in Redcar.
Chapter 46(5)(C): (formerly Chapter 40(6)(C)) Development Since the Rosepark Fire - the Fire (Scotland) Act 2005, its Regulations and its Consequences
The Crown's submissions are generally admitted and supported.
In the Submissions for the Scottish Ministers at page 13 paragraph 6, reference is made to evidence that "at least in some parts of the country, care homes were regularly inspected by the local Fire and Rescue Services".
Again it is emphasised that such inspections only took place as a result of requests by or agreement with the care home regulators, the Health Boards or Care Commission.
Chapter 46(5)(D), (E) and (F): (formerly Chapter 40(D), (E, and (F)) Building Standards, Rosepark Care Home and Mr Todd
At paragraph 16 of the Crown's Submissions reference is made to the issue of whether plans for use by the Fire and Rescue Services should be provided by the care home. Counsel for the Scottish Government indicated that policy makers considered that the onus in this regard should be on the Fire and Rescue Services who have a responsibility to obtain information required or likely to be required for extinguishing fires and protecting life and property.
SF&R do not agree with the position of the Scottish Government in this matter.
In the course of familiarisation or other visits the Fire and Rescue Service would obtain only a "snapshot" of the position in any set of premises. It is perfectly conceivable that the premises would be physically changed between the date of a familiarisation or other visit and the date of a fire. Even more likely is that the occupants and the physical health of the occupants could change during that period.
The only person who would know, on a day-to-day basis, about the premises and the use to which the premises were being put to is the occupier.
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY AT HAMILTON
FINAL SUBMISSIONS
for
Lanarkshire Health Board
in
FATAL ACCIDENT INQUIRY
INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
Condolences.
Lanarkshire Health Board wishes to acknowledge the painful loss suffered by the surviving relatives of the deceased in this tragic case. It can be some comfort that the forensic experts were able to conclude that no one can have suffered the effects of heat and that for those who died at the nursing home death would have come quickly and probably without distress. Lanarkshire Health Board wishes to offer again its sincere condolences. The admirable conduct of the deceased's relatives throughout the FAI was a model of dignity and restraint. The Board is conscious of the strain endured in following the evidence and recognises that the process of following the various submissions will not be an easy one.
In making submissions and in responding to criticisms the Board is aware that there is scope for this to be misunderstood. It may be necessary to touch on sensitive matters and erroneously there may be created the impression of a detachment from the facts and an adherence to legalism. The Board is alive to the fact that this is not an academic exercise and has not lost sight of the impact that this procedure has had on the relatives. No disrespect is intended by framing answers in a dispassionate way or in energetically resisting submissions by the Crown and other parties.
Final oral submissions for Lanarkshire Health Board
Hamilton Sheriff Court 17 February 2011
Parties have been asked to make any final oral submissions in support of the written submissions brief.
1. The Crown contends that the scheme of inspection operated by Lanarkshire Health Board misled the owners and operators of Rosepark Nursing Home into the view that fire safety precautions were not a priority. The members of the Balmer Partnership who gave evidence did not accept that. They regarded the inspections as detailed and thorough - the staff regarded them as formidable.
For the reasons given Mr Balmer senior's account of the events following discovery of a disconnected bedroom door closer ought not to be accepted. The submissions supporting his indifference to resolution of the matter runs contrary to his energetic response to all other matters including the triviality of his name being misspelled.
There is evidence that Mr Balmer countermanded the simple message of the fire safety video - call 999. He insists in testimony that the dangerous 'find-first-then-call' system was not his but was created by two experienced fire officers. In such circumstances no trust can be rested in testimony that suggests that the Health Board approach to fire safety was misleading. The inspections in fact were robust. Records which had been contemporaneous and available to inspectors cannot now be said to be complete records of what was available at inspection. Records were discarded by Matron. Other records were created after the event and some records created despite not reflecting what they bore to certify.
2. Lanarkshire Health Board relies on the evidence of a scheme which included the operation of the alarmed fire door system and questioning of staff during inspections. This is simply not dealt with by other parties. An understanding of the scheme of inspection is incomplete and unbalanced without taking that evidence into account. It is evidence of a considered approach to fire safety at policy and implementation levels.
3. The basis for a distinction being drawn by the Crown between Lanarkshire Heath Board and its successor on 01 April 2002 the Care Commission in regard to section 6(1)(d) is erronious. No basis in fact or legal theory is set out by any party explaining why a statutory scheme of oversight which is extinguished and replaced by a scheme intended to be no less rigorous allows room for the former scheme to continue to have any effect. The Crown wish a finding relating to Lanarkshire Health Board under section 6(1)(d) which is unjust and is unfair to the former inspector witnesses. The Crown acknowledges that the Care Commission statutory scheme of inspection was intended to meet at least the same standard as that formerly. Even as late as today the Commission submits that the successor scheme did not require it to take the same depth of inspection as the Health Board, and in any event had it a view about bedroom doors and closer mechanisms it would have left the decision to the premises' operators. This supports the evidence that the Commission inspections were '...lax'. It is therefore not understood why the proposed finding under section 6(1)(d) does not refer to the Care Commission whose officers twice inspected the building, rather than the Health Board.
It is inadequate to propose that the Care Commission was presented with less prescriptive words of legislation since that would lead the Commission to insist on clarity. The suggested failure of analysis aimed at Lanarkshire Health Board would apply mutatis mutandis both to the Commission and to the legislator. Any purported failure by the Health Board must necessarily be cut off by the introduction of the new scheme. By analogy the passing out of existence of the Balmer Partnership meant the criminal proceedings against that body could not proceed after the fact of dissolution. The Health Board were statutorily deprived of regulatory existence in relation to Rosepark Nursing Home on 01 April 2002. Its ability to influence matters after that time was nil. The purported finding against the Health Board under section 6(1)(d) therefore should be rejected.
4. The parties responses to the Health Board's submissions do not adequately address what Regulation 13 actually required and parties do not address "...reasonably consider" points raised. For the reasons set out in this and other submissions it is not accepted that there should be a finding against the Health Board under section 6(1)(e).
Outline of structure
The structure of the responses and submissions for LHB is as follows;
1. The legal reasons why there should not be a finding against Lanarkshire Health Board under Section 6(1)(d). 'Contribution' in the 1976 Act falls to be understood in close company with the other substantive statutory concepts in section 6 and is not free-standing or severable from the requirement that any contribution must be part of the causative chain linking to the resulting deaths.
2. The legal reasons why there is no basis for any regulatory impact surviving the repeal of the Nursing Homes Regulation (Scotland) Act 1937 and the Nursing Homes Regulation (Scotland) Act 1990. Accordingly there should not be a finding against Lanarkshire Health Board under Section 6(1)(e).
3. An understanding of what was truly the Lanarkshire Health Board management decision-making in regard to the requirements for a sufficient and suitable scheme for fire safety under the 1990 Regulations must centre on the nature of the obligation of regulatory oversight imposed. The basis of the scheme of inspections distinguishes between Regulation 8 and Regulation 13 obligations, which respectfully the Crown does not. Regulation 13 is founded on the Board being shown to have considered reasonably what was presented convincingly as being in place at Rosepark. The standard in respect of fire safety was set by the fire authority and the Board required to consider reasonably whether that was being maintained at Rosepark.
4. An understanding of the degree of care and skill with which the biannual inspections were carried out requires that none of the evidence is minimised or neglected. Further any assessment that permits a party to represent that they were materially misled by the inspections must show that this line of evidence is persuasive and trustworthy. A trustworthy witness is one whose evidence is consistently trustworthy. It is an error to place undue reliance on unworthy evidence striking a balance between which of two inconsistent accounts it is safe - or unsafe - to accept. In cases where certain matters are called into question any explanation for an inconsistency or gap must be satisfactory and will be capable of being harmonised with other matters of more certain provenance. The Lanarkshire Health Board inspectors can be shown to satisfy the requirements of trustworthiness in their evidence.
5. Any finding should be based on an assessment of evidence which is natural and unstrained. Lanarkshire Health Board witnesses gave evidence in a measured and reasonable way even when challenged. The Inquiry offered an opportunity to others to take the same approach and an understanding of the responses is instructive in coming to a view about the basis for making determinations.
1. "Contribution" in Section 6 of the 1976 act
The Crown submits that certain findings in relation to Lanarkshire Health Board can be made under section 6(1)(d) of the 1976 Act. It is submitted that this is not an accurate understanding of the framework of the 1976 Act. There might be scope for such findings under section 6(1)(e) although this is also resisted.
Importance of words of 1976 Act - '...accident resulting' and the determination
The draft submissions in answer for Lanarkshire Health Board are informed by the statutory framework set down in the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976[4783] (the 1976 Act). The governing rules are the Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules[4784] (the 1977 Rules).
Section 6(1) of the Act provides that at the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff has to make a determination setting out the following circumstances (slightly modified to take account of the details of this Inquiry) of the deaths, so far as they have been established to his satisfaction;
"(a) where and when each death and any accident resulting in each of the deaths took place;
(b) the cause or causes of such deaths and any accident resulting in the deaths;
(c) the reasonable precautions, if any, whereby the deaths and any accident resulting in the deaths might have been avoided;
(d) the defects, if any, in any system of working which contributed to the deaths or any accident resulting in the deaths; and
(e) any other facts which are relevant to the circumstances of the deaths."
The submissions in answer for Lanarkshire Health Board are drafted on the basis that it is important not to lose touch with the words of section 6. 'Contribution' cannot be understood in isolation and always carries a requirement to tie the contribution claimed to a direct causality in the death relied on. The point can be illustrated by looking at the other aspect of a finding under Section 6(1)(d), 'accident'.
In subsections (a) to (d) '...accident' does not appear as a stand-alone concept and is always placed in conjunction with the qualifying word '...resulting'. Accordingly, not every conceivable event that could be moulded to become an 'accident' will be a relevant accident since it must be an accident 'resulting' in a death. It is therefore submitted that it is an error to identify an alleged failure as a relevant event for the purposes of sub-sections (a) to (d) unless it can be proved that any of the deaths under review resulted from the 'accident'. An alleged defect which contributed to any death is not simply an event in the history of the facts. A contributory event must be an event which had a real and continuing impact up to the point of death.
In this case the Nursing Homes Registration (Scotland) Act 1938 and the Nursing Homes Registration (Scotland) Regulations 1990 were extinguished and replaced on 01 April 2002 by the Regulation of Care (Scotland) Act 2001. This new regime came into force regulated by a new body the Care Commission which absorbed and extinguished the regulatory functions of Lanarkshire Health Board for nursing homes. Under that new scheme Rosepark Nursing Home was twice thoroughly inspected including for fire safety practice, procedures and records. There is therefore not any basis on which it could be said that there was a continuing effect flowing from the 1990 Regulations in January 2004. In the evidence the Care Commission regime was said to be '...NHS plus' and was a new way of regulating nursing care in a residential setting but taking the same strict approach to examination of the fire safety practice and procedures in place at the premises. The criticisms made by the Crown accordingly have no place in subsections (a) to (d).
It is accepted that in the context of an FAI '...an accident' in itself and considered outwith the bounds imposed by Regulation 6 is not to be construed restrictively or narrowly, and neither would '...contribution.' An accident in an FAI could be said to be at its narrowest an event or series of connected events with unintended lethal consequences. It will include the activating of latent defects and concealed defects of fabrication or construction. An accident may be the result of one single occurrence or of two or more things acting together cumulatively or in sequence. Depending on the facts, an accident might be defined by an act omitted to be done, singly or in the developing course of events, but that would not naturally include an alleged failure by the management group to appreciate the terms of a Regulation. An omission in the context of an accident must mean a physical omission of something not done that ought to have been done, and that had it been done, that would have circumvented the circumstances which had a Fatal result. In this case, if it is contended that a failure to appreciate a regulatory obligation had a physical result in that there was a connected and consequential failure by an actor to do something - act on allegedly incomplete records or deficiencies in premises or procedures - then it must be shown that this is actually the case.
Although the apportionment of guilt or blame is not essential or required in a statutory determination under the 1976 Act, apportionment of causation and connection of events to results is. It is therefore important that the relevant accident must be found to occur in the statutory context of the 1976 Act. It is not enough that the event in itself can be regarded as an accident, the accident must be a causative event in the death or the accident.
'Accident' is not defined in the Interpretation Act 1978 but there are reported cases which deal with defining the concept. It can be seen that there is not a bare definition of accident in the abstract. It is linked with relevant consequences in order to be a relevant accident.
The traditional common law definition comes from Fenton v Thorley:[4785]
"The word accident is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word accident is also often used to denote both the cause and the effect, no attempt being made to discriminate between them."
Lord Diplock, in Hudson[4786] built further on this but made the crucial point that an accident in a statutory consideration must be causative of the loss. Hudson was an appeal in a claim for benefits under the National Insurance (Industrial Injuries) Act 1946. The right to a relevant benefit arose only if the claim was created by an accident, but that accident must be causative of the position which gives the applicant an entitlement to the relevant benefit. The chain of causation which creates the entitlement to injury benefit is accident - personal injury - incapability of work, but for the entitlement to a benefit to arise the causative nature of the accident must be shown to exist:
"An event which constitutes an 'accident' with which the statute is concerned, has two limiting characteristics: the misfortune which it causes must be 'personal injury' to an insured person; and the event must be one which can be identified as arising out of and in the course of that person's employment. It cannot be the 'personal injury' itself of which it is described as the cause."
This passage among others formed part of Lord Hope's judgment in Faulds[4787]
"In my opinion Lord Diplock's observations in that case serve to underline the point that it is not enough for the purposes of the Benefits Act to show that the condition in question arose "by accident." Dicta such as that by Lord McLaren in Stewart v. Wilsons and Clyde Coal Co. Ltd. (1902) 5 F. 120, 122 to the effect that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in" is an accidental injury in the sense of the statute, which was approved in Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, 449 by Lord Macnaghten and in Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242, 256 by Lord Collins, are too widely expressed for the purposes of the requirements of the Benefits Act. There must be a causative event or incident which can be described as "an accident.""
In the context of a Fatal Accident Inquiry determination under section 6 it is not enough to assert that a condition can be ascribed to be an accident and that there is a detriment that can be identified. The accident must truly be an accident and must be causative of the detriment. In the same way, any contribution must be a causative contribution to the death which is supported by the facts.
2. The statutory scheme 1992 to 2002.
The ability for the scheme to have any effect ended on repeal
Lanarkshire Health Board rejects the Crown submission that in terms of section 6(1)(d)of the 1976 Act there were a number of defects in the systems of work that it operated in terms of Crown Production 1899, the Nursing Homes Registration (Scotland) Regulations 1990. In order to found a submission that any defect contributed to the deaths of Margaret Gow and Isabella MacLachlan and that absent such defects the other deaths might have been avoided it is necessary to demonstrate that any alleged defect was causative of the deaths. A contribution in the abstract or historically is insufficient. There must be demonstrated to be a basis on which any alleged contribution from an extinguished statutory scheme remains active. The introduction of a new statutory scheme of oversight of nursing homes which completely subsumed all of the obligations formerly binding on Lanarkshire Health Board is a novus actus interveniens. Even if it could be argued that there was a defect in management or inspection under the former provisions they could not be a contribution to any of the deaths after the provisions are repealed prior to the deaths and are wholly replaced by new statutory provisions which novate a substitute regulatory scheme and a different basis of regulation.
The Crown relies on an expert witness, Mr Sylvester-Evans who advanced a view in 2009 in regard to vigorous standard setting by regulators. He was not asked to explain how the procedures adopted by a superseded regulator had any continuing effect or could have any effect on regulatory standard setting and continuing regulation. In any event (properly, standing his expertise) he was not asked to explain how the wording of the 1990 Regulations affects his view. It would be an error to assume that current expert practice can retrospectively be applied to superseded legislation and associated regulations. It may explain only why the Act and Regulations were superseded.
The scheme vesting responsibilities with Lanarkshire Health Board was repealed by the Regulation of Care (Scotland) Act 2001 which came into force on 01 April 2002. This Act and the regulations made under the Act was a complete repeal, and deliberately repealed the pre-existing 1938 Act and all of the related secondary legislation. The evidence led from witnesses in relation to the reasons for reform and the scope of implementation made clear that certain perceived deficiencies existed in the 1938 arrangements. Importantly, there was no criticism of the basis on which the Board and the Local Authority regulated nursing homes. Rather, the criticism was that the inspections were too narrowly focussed on process issues such as provision of clean and safe conditions but seemingly without regard for how the patient experienced care. This thesis argued that 'care' could be delivered adequately by the provision of clean, safe well heated and decorated accommodation and with good nursing care, but without regard for the perception of the patient as a person who should be made to feel happy and cared for. It was contended that insufficient attention was paid to the care experience up to 2001.
Accordingly the new scheme of registration and regulatory oversight planned to put that right. It was recognised that the objective quality of the facilities provided and the quality of nursing care remained something that must be promoted and improved if necessary. All other aspects of care previously held to be important were not to be watered down, but additional time and effort had to be spent on observing the delivery of care and on talking where possible to the recipients of care to assess and to understand their subjective sense of happiness and well-being.
This would require that inspections took place over a much longer period of time in each establishment, extending inspections from an afternoon or morning as in the period to April 2002 to at least a day and sometimes a day and a half. Everything was to be assessed and with the new perception of quality of care in mind. It is understood from the evidence that Rosepark was inspected twice in this way after April 2002. The bedrooms were examined, and perhaps in more detail and in a wider context, and for longer than formerly standing that patients were visited there. Fire safety remained an important part of inspections. In order to assist with this process, all of the Lanarkshire Health Board records and inspection reports were delivered to the Care Commission. They were ranked according to whether the premises were in need of immediate attention (red); would require some scrutiny in the near future (amber) or were premises for which no special concern was indicated (green). Only a few premises were red or amber. A majority green code was not a certificate of excellence by Lanarkshire Health Board. It was no more than an indication that the premises did not fall under the urgent red category or priority amber category.
The Care Commission had available teams of inspectors recruited from the Health Board and the Local Authorities who were experienced inspectors already. The records could easily be understood. All of the matters raised in relation to Rosepark were able to be appreciated by a simple reading of the records and were it thought necessary could have been highlighted for attention. As an example, the Care Commission could have highlighted the door closer issue and decided to prioritise that in inspections. There was not a pressure of time driven by urgency to inspect Rosepark.
The evidence was that the 2001 Act scheme of inspection was expected to be detailed and comprehensive. It was anticipated that the fire alarm, fire safety and fire protection measures in Rosepark would come under review in the inspections. There is no evidence that the inspection regime for these matters was either to be discontinued completely under the new 2001 arrangements or was to be hived off to another body.
The submission for Lanarkshire Health Board on this issue therefore is in two parts. First, the repeal of the 1990 Regulations meant that there was no power to permit the influence of the Lanarkshire Health Board management decision-making or scheme of inspection to continue. Second, the introduction of a substitute scheme which was put into practical effect at Rosepark on two occasions based on preparations for inspection created by the Care Commission was a novus actus interveniens.
It is an error to proceed on the basis that a successor statutory body co-exists in some sense with the the statutory body it replaced. The new body will absorb all of the functions and obligations of the former, and that must have been the legislative intention since there were no transitional or survivorship provisions enacted.
If it is the intention of the Crown to criticise the inspection and management by Lanarkshire Health Board then legally that can be done under section 6(1)(e) submissions.
3. Lanarkshire Health Board management decision-making.
The starting point for this section of discussion dealing with the management consideration of the 1990 Regulations must be a consideration of the parent Act, Crown Production1828 the Nursing Homes Regulation (Scotland) Act 1938 - the 1938 Act.
The 1938 Act created the offence of operating a Nursing Home not registered with the appropriate authority. Registration was to be granted on application and payment of a fee unless refusal could be justified under section 1 including for this discussion the '...situation, construction, state of repair, accommodation and staffing'. Section 2 empowered the authority to cancel a registration on any of the grounds which applied to an application for registration. Section 5 empowered the authority to authorise inspectors to enter and inspect the registered premises. Inspectors were to be medically qualified including nurses or a duly authorised officer but inspections were confined to the premises and to records required under section 4(a)(i) + (ii) but not medical records. The Act is therefore concerned with the quality of the structure and the staff and of record-keeping in relation to the patients admitted and the persons employed in the registered premises.
The 1938 Act therefore defined the basis on which registration was made and maintained.
The Regulations permitted under the Act were made and superseded in a number of iterations but the basic premise of the governing statute was not modified by secondary legislation. The legislator must be taken to have decided to proceed on this basis during the 64-year life of the 1938 Act, substituting succeeding Regulations where relevant for the obligations of the regulator, and making other provisions under different legislation and schemes as appropriate to other duty-holders and other regulators/inspectors. Had the legislator wished to import specific schemes of regulation on the regulator under the 1938 Act, in this case Lanarkshire Health Board, that could readily have been done. Instead the 1938 Act was permitted to continue in force as an empowering statute in which the scope of powers was to be located in the statute and the succeeding Regulations made under the 1938 statute.
In order to achieve its regulatory purpose the 1938 was drafted sufficiently widely to permit the scheme of inspection and maintenance of registration to be conducted on the basis of certification by skilled persons engaged by outside bodies. That must be true since the inspector was to be a doctor, nurse or other authorised person not further specified, and yet not designated to be a buildings or construction expert. However in addition to the nursing care and care staff, the inspector was required to have regard to the building and its construction and repair. The 1938 Act did not create a requirement that the regulator would appoint inspectors skilled in non-nursing or non-medical expert fields to deal with buildings and structural matters. Logically therefore the regulator had the power to create a process where such expert matters were to be examined and certified to the regulator by an appropriate outside skilled person or expert.
That explains the development of the process to 1992 where the planning, building, fire and other specialist authorities would supervise and inspect premises making an application for registration, and that registration could be withheld until the appropriate outside body was sufficiently satisfied with specialist matters to be able to certify the position to the regulator. The regulator was not statutorily required to be equipped to look behind a certificate, and could grant registration based on receipt of a certificate. The basis of that grant of a certificate was that the regulator was then able to reasonably consider that the standards set by the outside authority were suitable and sufficient for those purposes.
Interpretation of the 1990 Regulations.
The Nursing Homes Registration (Scotland) Regulations 1990 are produced at Crown Production 1899. The Regulations set the agenda for Lanarkshire Health Board managers in determining how it should fulfill its obligations. The managers required to consider how each of the Regulations related to each other and what each Regulation demanded in its own terms.
Regulation 8 set out the records including fire safety records of fire practices, alarm tests and remedial action taken by the registered person. The records had to be kept only for a period of three years from the last entry. At this point it is observed that the Crown's analysis of contribution proceeds on the misconception that all of the records retained by and on behalf of the registered person at Rosepark Nursing Home were a complete record from the beginning of the records required to be kept under this regulation. The examinations-in-chief of the Health Board inspection team members all proceeded on the basis that any gap in the records produced which are now evident must represent the position at the point of inspection years before. However Ms Meaney as Matron from November 1998 gave evidence that she discarded outdated records that had served their purpose. The records under Regulation 8 were part of the records under her control. It should not therefore be surprising that the Regulation 8 records are not complete and ought not to be regarded as such.
The records to be kept for at least three years under regulation 8 are to be available for inspection under regulation 11 - if asked. Regulation 11 empowers the inspectors (authorised persons) to inspect the regulation 8 records and regulation 12 requires that the regulation 8 records will be inspected biannually. Accordingly, it can be anticipated that the regulation 8 records will be incomplete.
The identification of the precise nature of the regulation 8 records therefore placed those records in a different category from records identified under the facilities provided, precautions taken and arrangements made under regulation 13. Regulation 13 is the basis on which the formula applies that Lanarkshire Health Board shall be 'satisfied reasonably' are '...sufficient and suitable' in the circumstances of any particular nursing home and related not to Regulation 8 records but to the facilities provided, precautions taken and arrangements made as directed by that Regulation.
It is unacceptable to attempt to read regulation 13 as though regulation 8 with its separate provisions and identifications must necessarily be imported into it. Had that been the legislator's intention it would have been simple to do so. However regulation 13 makes clear that this was not the legislator's intention by specifying that the '..sufficient and suitable' test relates solely to those admittedly extensive matters that are subsumed under facilities provided, arrangements made and precautions taken, but plainly are not identical or interchangeable with records required to be maintained under regulation 8.
This has two effects at least for the purposes of submissions.
First, any claimed defect in continuity, completeness and content of regulation 8 records (if such can be proved at this distance from the inspections relied upon) are not to be borrowed in criticising Lanarkshire Health Board's management understanding of what it was required to ensure was sufficient and suitable reasonably in the circumstances of the registered premises. The true understanding of how well the Board understood its 'sufficient and suitable' task must be found in the other evidence, which in this case is amply demonstrated by the evidence of the practical and thorough assessments made by the senior nursing inspectors.
Second, the criticism made by the Crown is wide of the mark, and itself is based on a failure to appreciate what the 1990 Regulations truly demand.
It is important to recall that the relevant authorised persons at Rosepark Nursing Home, particularly Ms Meaney were clear that the Lanarkshire Health Board inspection teams were searching and demanding task masters. The biannual inspections required careful preparation and were anticipated with some anxiety. This was in contrast to Ms Meaney's perception that the inspection regime by the Care Commission was '...lax'. This is supported by the Care Commission witness (formerly a local authority authorised person for the purposes of inspections of nursing homes) who also adopted a careful Health Board like approach to the assessment of fire precautions at first. In her early inspections of nursing homes with the Care Commission she was told to discontinue that practice on the footing that '...we don't do that'.
Reasonably consider not 'shall ensure'
Regulation 13 is framed as a provision in which the registered person is directed to;
13(2) make adequate provision standing the size of the nursing home and the characteristics of the patients for among other things
(e) fire fighting equipment, and
(h) fire drills and practices so that at least the staff know the procedure to be followed.
(j) notices setting out the fire drill
13(3) standing the size of the nursing home and the characteristics of the patients
(a) take precautions (i) against the risk of fire
(b) make adequate arrangements for detecting and dealing with a fire, for fire warnings and evacuation if required of the patients.
13(4) Shall
(f) at such times as may be agreed with the fire authority, consult that authority on the fire precautions in the home
It is clear therefore that the person statutorily bound to give practical and meaningful effect to all fire related matters in the home is the registered person. It is clear that the fire authority and not the Health Board is the body which must be consulted on these matters. This is in keeping with the Health Board being satisfied reasonably by certificates provided by the outside bodies such as fire authorities on first registration of premises.
It is clear that the registered person cannot permit himself to discharge his obligations on the basis of a health board inspection, nor can he rely on an inspection. He must discharge the obligations personally and must refer to the competent fire authority. That helps to explain why the pre-registration inspection by the fire authority addressed fire safety facilities, provisions and arrangements and offers consultation with the putative registered person
If the registered person had made inadequate provisions, precautions or arrangements in respect of fire safety matters and had not consulted with the fire authority in an effort to address those matters then he had no defence in claiming the shelter of a health board inspection.
In this case however, the registered person can show evidence that he did consult with the fire authority and arranged at least two lectures by an appropriate fire officer. The evidence in relation to what advice was offered was revealingly contradictory. The Balmers' position was that the oddity of the 'find and report' procedure on the alarm being activated was in fact advice given by the fire officers from the initial consultation pre-registration and was reinforced by the fire officer giving the lectures. The Balmer's assert that the procedure that they adopted was not invented by them but rather was the procedure devised by the fire officials. Indeed Mr Balmer persisted in his evidence to assert that the procedure he developed was in fact the procedure followed in many nursing homes.
This was flatly contradicted by evidence from the fire officials who found it to be inconceivable that such a procedure could have come from the fire authority. The only acceptable procedure on a fire alarm being activated was to contact the emergency number immediately. Health Board inspections of the premises followed a tried and tested formula which formula included a procedure where the fire alarm was activated by opening an alarmed door and by questioning at random a member of the nursing staff regarding the procedure to be followed. This produced the result that Rosepark seemed to be operating a procedure that would be recognised as acceptable to the fire authority and was conform to the procedures set out for nursing homes by the fire authority. The Board inspection formula applied routinely in nursing homes throughout the area did not identify any nursing home as operating a fire response procedure that varied from the fire authority model.
In submissions for Lanarkshire Health Board, it is strongly contended that this conflict should be resolved in favour of the fire authority and Lanarkshire Health Board, standing the irrationality of the claim that there would be a bespoke fire procedure for this registered premises which failed to meet the standards insisted upon for everyone else. At best, the Balmer's collective memory on this matter is at variance with reality and should be discounted.
The same approach should be adopted when comparing the Balmers' recollections of contacts with Lanarkshire Health Board inspection teams where there is a conflict, such as over the re-instatement of disconnected door closers and of inspection of fire routines.
Suitable and sufficient standard was to be reasonably considered.
Regulation 13(1) creates the obligation on the registered person to provide facilities, take precautions and make arrangements to a standard that will permit the Health Board to reasonably consider that they are suitable and sufficient taking into account the circumstances of the particular home (the size of the nursing home and the characteristics of the patients). The standard is set at registration and is maintained at that standard and not some later standard. Accordingly, The Board's first obligation at registration is to reasonably consider these matters. In relation to fire safety, the letter of comfort is provided by the fire authority. The Board's obligation can be satisfied by reasonably considering the letter of comfort and concluding that the letter would not have been issued in circumstances where the fire authority did not consider that the registered person's facilities, precautions and arrangements in relation to fire safety were suitable and sufficient. The Board understood that the letter of comfort followed an inspection and testing regime, and the fire authority witnesses understood that registration would be withheld until the officers were prepared to issue a letter.
The matter would not arise again until any development or alteration that required a reconsideration by the fire authority.
The next stage of obligation that then falls on the Health Board is to inspect so that it can bianually reasonably consider that the registration standard( which was then reasonably considered to be suitable and sufficient) is being maintained. It is not a requirement of the wording of the provision that the Board inquires on each inspection whether matters are sufficient and suitable. In the absence of an adverse unresolved finding on inspection or an adverse report from the fire authority, the reasonable consideration at registration remained in effect. Rather the Board had to consider reasonably whether the already determined sufficient and suitable standard is being maintained, which imports a measure of discretion to see matters in the round. An adverse finding on inspection regarding fire safety could prompt a report to the fire authority who would then inspect the premises and report back to the Board. Any adverse finding on a fire authority inspection under section 1(1)(d) would prompt a report to the senior fire safety officer by the fireman who was concerned. That would prompt a report by the fire safety officer to the Board and the Board would then inspect, probably immediately on receipt of the report.
The requirement '...shall be maintained' is a direction that falls to the registered person and throws him back on his ability to consult. He cannot claim to rely on any perception that he may have of the Board's views of its obligations which are framed differently from his near absolute directory obligation.
Lanarkshire Health Board was entitled to reasonably consider that the letter of comfort had been issued by the fire authority because the fire authority was satisfied in respect of the fire safety facilities, precautions and arrangements. It was entitled to adopt the view that the fire authority would not issue a letter of comfort unless the fire safety facilities, precautions and arrangements were sufficient and suitable. On that basis Lanarkshire Health Board was entitled to come to the view that the fire safety facilities, precautions and arrangements were in fact suitable and satisfactory.
For that reason it was not statutorily necessary to ensure that the inspection team had a qualified fire officer in attendance in relation to fire safety matters. It was enough that a scheme was in place to permit a reasonable consideration of maintainence. The same is true of other matters which required a specialist input. There was not a requirement that the inspection team attended with a qualified electrician or building control expert. These were matters that the Board could reasonably consider were sufficient and suitable based on responsible third party body certification such as by the Local Authority. It is not suggested by the Crown that the management at Lanarkshire Health Board ought to have interpreted its duty as being discharged in some other way, and there is no basis in the Regulation to separate fire safety from any other matter incumbent on the registered person.
4. The biannual inspection
The inspection scheme at Rosepark Nursing Home.
The inspection team included a senior pharmacist who concentrated on prescription drug control and safety. The team leader was a senior experienced nurse.
In the totality of the evidence, the inspection process was much more than confined to a simple record checking, and adopted the additional assistance of certificating bodies.
There were a number of specifics in the evidence that support this position.
Mr Lynch gave evidence on 05 March 2010 (page 117 transcript) regarding Crown Production 1400 at para 3.7. There was at inspection more than a perfunctory reading of records available. There were in the document references to documents that are not now available but which confirmed that there were fire authority visits and evidence of the existence of documents verifying Health and Safety and other matters being documented.
The true basis on which Lanarkshire Health Board was able to satisfy the reasonable consideration test under Regulation 13 was confirmed in his evidence that a letter of comfort was regarded as a certificate of the relevant fire safety matters including procedures. There was a passage taking up the sequence of dates of visits and the letter of comfort. Albeit that the letter of comfort seemed to leave open the question of the formulation of a suitable fire alarm procedure, in fact there had to have been evidence available to the inspection team which satisfied this element pre-registration and that the procedure could be demonstrated to satisfy the fire authority. He emphasised that matters of fire safety and procedure were certified to be sufficient and suitable by the fire authority. At page 139 Mr Lynch explained that it was the certificate that he had to be satisfied with before the nursing home was registered.
Mr Lynch was taken to his visit to the premises in 2000 and in particular his examination of the bedroom doors of the rooms which he inspected. Had there been a door closer that was missing or disabled or disconnected, or in some way unsatisfactory he would have noticed it. He would have taken the matter up and would have ensured that it was corrected by the door closer being replaced or reconnected. It was inconceivable to him that he would have not taken up the matter since the operation of door closers was something that he had in mind in inspections.
Mr Lynch discussed entries in Rosepark self-audit documents. These entries confirmed the attendance of the fire service and although this was not clearly a statutory visit, it was evidence on which the Board could rely in being able reasonably to consider the maintainence of the Regulation 13 matters.
There was also evidence that in the course of an inspection the fire alarm would be activated by pushing open an alarmed door. The fire procedure was checked by asking a member of the nursing staff to give an account of what would happen. There was not an example of the staff member suggesting that there would be any other procedure than an emergency call to 999 asking for the fire service.
Taking a fair view of the evidence, the suggestion in Chapter 39(5) of the Crown submissions at 4, that the approach taken by Lanarkshire Health Board was superficial, is not correct.
In the course of Mr Falconer's evidence on 05 February 2010 (page 62 and 66) he explained the true nature of the vigilance exercised by fire officers in attending at a familiarisation visit at registered premises. In addition to the familiarisation aspects of the visits, there was also attention paid to the existence of hazards and procedures. In common with other such witnesses he would be alert to defects and would take matters in hand to correct them. He would consider a report to a senior officer and would not be slow to do that.
The Crown appears to narrow the understanding of what actually happened in the Fire Authorities' section 1(1)(d) inspections, taking all of the evidence into view. If there is confusion about what was the scope of a section 1(1)(d) inspection it is not unique to Lanarkshire Health Board inspectors. Several fire officers who visited the premises on that basis made it quite clear that they were alert to much more than what might be regarded as the precise wording of the provision enabling the visit. Some of the fire officers regarded the provision of fire safety equipment and procedures to fall under the scope of a hazard that would endanger them in their duties were they required to attend an emergency in the premises. None of them would have tolerated an immediate and remediable hazard and would not have left the premises in a dangerous condition. All of them understood that they could report defects and hazards to another senior rank who could arrange an inspection to remedy matters and none would have neglected to do so. The inspection in this context was an inspection by the fire authority and not Lanarkshire Health Board. Most understood that this report could result in a reference to Lanarkshire Health Board in its capacity as the regulator. It was well understood among Lanarkshire Health Board inspectors and the fire officers that there was an open channel of communication in regard to fire safety at registered premises, and that action would immediately and necessarily follow from such a report, and none of the officers would have hesitated to make a report on that account.
Fair view of the evidence.
The Crown is prepared to accept the evidence of Ms Boyle, Ms Meaney and Mrs and Mr Balmer in relation to the routine disconnection of bedroom door closers. There are inconsistencies in their testimony which are revealing but unresolved. Ms Boyle thought that she had the positive permission of Mr Hattie to remove or disconnect door closers as appropriate. No-one else thought this. Ms Meaney thought all of the disconnections were already done before she became Matron in November 1998 although others took the view that disconnections or removals related to individual needs and wishes of the patient. Ms Meaney thought that the details of disconnections and removals were entered in the patient's records where Mr Clark thought that the records were made in the book that he completed. Both were wrong and there is no record of disconnection or reinstatement. Had Ms Meaney been correct, the entries would have been read by the inspectors.
Mr Balmer thought that there had been an incident in which three lady patients met the inspectors at the foyer area in advance of an inspection and made it vociferously clear that they wanted their door closer mechanisms removed, which the inspectors agreed to. None of the inspectors could recall this, although Mr Balmer seems to recall an event that might have been the same only some years before Mr Balmer's memory allowed.
Mr Clark had one entry in his records at page 27 - ensure all doors closed at night.
Mr and Mrs Balmer both thought that they had given clear instructions that bedroom doors were to be closed at night. If so, this instruction was not followed although neither of them recalled seeing doors open at night when they visited the night staff.
Not one of the fire officers including those who entered bedrooms noticed that there was a door closer mechanism either missing (and obviously missing due to holes in the door and doorjamb) or (even more obviously) in situ but disconnected by the now freely swing arms. Yet in the Crown's analysis of the evidence both of these conditions subsisted from 1994 and all of the disconnections and removals were permanent from 1998.
Forensically, it could be observed that some doors had been wedged open even where a door closer mechanism was in place. The inspectors accepted that wedging could occur for a temporary and practical purpose but not to ensure that the door remained open at night. This practice would have been unacceptable. There was no evidence of use of door wedges on inspection visits. Had the position been as regular as the nursing staff would wish to say then there is evidence that it was done in the knowledge that it would not be sanctioned.
Oddly, there was evidence of an electrical installation compliance certificate created by Mr Balmer with a view to making an application for a competitive insurance quote. Despite the care with which the document had been made and preserved it was never used or exhibited to anyone. However it was acknowledged that this was a document that bore to give the appearance of regularity in the nursing home's documentation without there being substance to that appearance. There were other documents that could be described as falling into a similar category.
Mr Clarke agreed that some of his records were made after the event, and after the fire, although that should not have happened.
There are other examples of incongruity. It is submitted that in these circumstances the Crown falls into error in treating the conflict in evidence between Lanarkshire Health Board witnesses and others more closely associated with the registered premises as being evenly balanced such that in addressing the reliance that can be placed on the former, it is unsafe to do so where there is a conflict with the latter. It is submitted that any conflict ought to be resolved in favour of the witnesses from Lanarkshire Health Board.
It can be shown that in fact there was a full and practical examination of the registered premises by Lanarkshire Health Board inspectors, and there were in place procedures which fulfilled the regulatory requirements. There was not any failure to appreciate a regulatory obligation. The inspection process was 'formidable' in the words of witnesses. It is not accepted by Lanarkshire Health Board that in the period 1992 to 2002 the bedroom door closer mechanisms were routinely disconnected or dismantled up to November 1998, and that these conditions continualy existed from November 1998 to April 2002. Had that been the case it would have been observed by the inspection teams and action taken to remedy the situation. It is contended that during many of the Lanarkshire Health Board inspection team's biannual inspections the fire safety procedure on activation of the fire alarm was tested. The tests disclosed that the procedure actually claimed by staff to be the true procedure in effect was procedure that met the requirements of the fire authority such that a letter of comfort could be issued and conform to fire safety lectures delivered by a senior fire officer.
There was not any failure by Lanarkshire Health Board to appreciate its obligations created by the 1990 Regulations. There was not in fact an obligation to make an independent Health Board assessment of what was sufficient and suitable for fire safety under the 1990 Regulations beyond the fire authority assessment. There was an obligation to reasonably consider the maintenance of the standards set by the fire Authority on registration of the premises. The obligation was fulfilled.
ADDITIONAL PROPOSED DETERMINATION BY LANARKSHIRE HEALTH BOARD
Section 6(1)(c) - the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided.
Vision panels in the cross-corridor fire doors [Chapter 14]
1. It would have been a reasonable precaution:-
(1) for each of the corridor fire doors to have had fitted a vision panel when the doors were installed.
2. Had there been a vision panel in each of the corridor fire doors, the staff attempting to follow the fire-verification procedure would immediately have seen that corridor 3 was contaminated by smoke and that corridor 4 was smoke-logged. The staff would then have immediately called the emergency services and there would not have accrued the delays in raising the alarm. The resident's exposure to the lethal toxic fire gases and the time taken to rescue them and supply them with oxygen equipment would have been reduced by that period occupied by the investigating staff member going to corridor 3 fire door and the alarm call finally being raised. The investigating staff member might have been able to close the open bedroom doors in corridor 3. Those residents behind closed bedroom doors and so receiving a less toxically loaded mix of air and under less pressure would have been at risk for less time. The accident might not have resulted in the deaths of (1) Robina Burns, room 10/corridor 4; (5) Margaret Gow, room 18/corridor 3; (7) Isabella Maclachlan, room 20/corridor 3; and 8) Isabella MacLeod, room 11/corridor 4.
by
THE SCOTTISH COMMISSION FOR THE REGULATION OF CARE
i.c.
FATAL ACCIDENT INQUIRY
INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
CHAPTER 1: INTRODUCTION
1. The Scottish Commission for the Regulation of Care (hereafter "the Care Commission") has read the Crown submissions and does not take issue with any of the facts or analysis contained in this Chapter. It agrees thart the statutory provisions are summarised accurately.
2. In respect of the question of "reasonableness" referred to in Paragraphs 6.4 and 6.5, the Care Commission observes and endorses the distinction between findings in respect of whether a precaution is a reasonable one that might have prevented the death, and whether there was a defect in any system of working that did, as established by the evidence, cause or materially contribute to some or all of the deaths at Rosepark. The Care Commission will, in its submissions, seek to distinguish between these.
3. With reference to the submissions made under this chapter heading on behalf of Strathclyde Fire and Rescue Service, the Care Commission considers it well established in law that a sheriff's determination in a Fatal Accident Inquiry does not involve determination upon the issue of whether any person or group of persons was negligent. It may of course be the case that the consequences of an action or inaction were not foreseeable, and that the determination may nonetheless be that the taking of certain action might be a reasonably practicable precaution; the two are not mutually exclusive. Turning to the submissions made on behalf of Lanarkshire Health Board, the Commission merely notes and endorses the Crown's submissions at paragraphs 5 and 6. It has nothing to add in respect of the definitions of "accident" provided by Lanarkshire Health Board.
CHAPTER 2: THE LAW OF EVIDENCE
1. The Care Commission does not demur from any of the propositions set out by the Crown in this Chapter, and has nothing to add.
2. In respect of the submissions made by Strathclyde Fire and Rescue Service, the effect of delay upon the recollection of witnesses will be well known to the Sheriff Principal. Except insofar as it directly affects the evidence of witnesses upon whose evidence the Commission invites specific findings, it has no further comment. In respect of the submissions by Lanarkshire Health Board, the Commission does not intend to argue that its inspectors were "materially misled", and of course recognises that the assessment of the reliability of any witness is entirely for the Sheriff Principal.
CHAPTER 3: ROSEPARK CARE HOME: LOCATION AND LAYOUT
1. The location, structure and layout of the home are as stated by the Crown. The plans lodged as Crown Productions 1744 and 1745, although not exactly to scale, represent a fair approximation of the layouts of the upper and lower floors of the premises respectively as at the date of the fire. The Care Commission agrees that the photographs referred to show the parts of the premises as stated, and is happy, throughout these submissions to use the descriptions of Corridors 1, 2, 3, 4a and 4b as proposed by the Crown. The Care Commission further agrees that the exterior of the building is as shown in the Crown photographs.
2. As the roofspace and its access did not form part of the building inspected by the Care Commission, it expresses no comment upon the matters referred to in Paragraph 26. Nor does the Care Commission express any comment upon the locking or otherwise of gates as referred to in paragraph 29.
3. So far as terminology is concerned, the Care Commission agrees that the layout of the home may present problems of terminology. In its report following its inspection on 20th March 2003, it refers to the home only as "a purpose built two storey building"[4788], without expressing any preference as to the terminology to be used.
CHAPTER 4: MANAGEMENT AND STAFFING AT THE TIME OF THE FIRE
Management
1. The matters adduced by the Crown in paragraphs 1-6 fall outwith the knowledge and remit of the Care Commission. At the time of first inspection by the Care Commission, the names of the registered provider at Rosepark was confirmed to be Thomas and Anne Balmer[4789], and the Manager was stated to be Sarah Meany[4790]. Information as to her prior qualifications, experience for the post in which she was employed, and specific duties within the home is a matter for her employers and, except insofar as inspectors would be likely to check her employment records during an announced inspection, falls outwith the remit of the Commission.
Staff
2. The Care Commission has no observations to make in respect of the Crown submissions regarding staff. Staff information, including details of nursing status, details of care assistants, domestic assistants and kitchen staff, and a sample monthly rota, was provided to the Care Commission by the home management in its pre-inspection return submitted on 10th December 2002[4791]. The same information, although apparently absent the staff rota was submitted on 20th January 2004[4792]. During the inspection conducted on 20th March 2003, Care Commission inspectors saw no evidence to contradict the information provided in respect of staffing levels or the standard and level of care provided. Some of the staffing records were examined by Morag McHaffie[4793], who noted that the records produced listed the trained nursing members of staff, rather than the full workforce[4794]. A representative sample of the records was looked at during the inspection[4795].
CHAPTER 5: RESIDENTS ON 30-31 JANUARY 2004
1. The facts as stated by the Crown in this Chapter, including the specific references to the physical condition of the residents, both those who survived and those who died, are not disputed by the Care Commission in any particular respect. With reference to paragraphs 5-7, there had been a considerable turnover of residents in the period immediately preceding the fire, and the group of residents occupying Corridor 4 on 30th January was a more heavily dependent group than was the average within Rosepark[4796] .
CHAPTER 6: CONSTRUCTION OF ROSEPARK HOME
1. All the matters raised in this Chapter regarding the construction of Rosepark pre-date the inception of the Care Commission, and fall outwith its remit as care regulator. With reference to the absence of fire dampers, this was not a matter within the knowledge of the Care Commission at the time of inspection, nor could it have been discovered by Care Commission inspectors carrying out their duties to a reasonable standard in terms of the relevant National Care Standards[4797]. The Care Commission has no further observations to make.
CHAPTER 7: REGISTRATION
1. All the matters raised in this Chapter regarding the construction of Rosepark pre-date the inception of the Care Commission, and fall outwith its remit as care regulator. The Care Commission has no further observations to make.
CHAPTER 8: THE VENTILATION SYSTEM
General: dampers and their maintenance
1. The types of fire dampers in general usage and the typical types of damper that would usually be fitted at the time Rosepark was constructed are matters that pre-date the inception of the Care Commission, and fall outwith its remit as care regulator. The Commission concurs that fire dampers were essential in the construction of Rosepark, and should have been fitted by someone with a reasonable expertise in the field. The Commission has no comment in respect of maintenance of any such dampers.
Description of the ventilation system at Rosepark
2. While the matters referred to by the Crown under this subhead fall outwith the Commission's remit, it agrees that this is an accurate summary of the evidence led, and in particular that the installation and workmanship was of a poor standard.
CHAPTER 9: THE FIRE ALARM SYSTEM
Installation/Maintenance of the fire alarm
1. The installation of the original alarm panel, and its initial maintenance, predated the inception of the Care Commission, and the matters raised under these subheads fall outwith the knowledge and remit of the Commission.
Testing of the fire alarm system/Record keeping
2. The testing records (Crown Production 27) were made available to, and examined by, Care Commission inspectors on 20th March 2003.
Change of the fire alarm panel January 2004
3. The Care Commission does not disagree with the Crown narrative on this point. It was not aware of the change of the fire panel, nor did it require to be intimated to the Commission. As its next inspection, scheduled for 24th February 2004, clearly did not take place this change did not come to the attention of the inspectors.
The fire alarm system at the time of the fire
4. The matters raised under this subhead fall outwith the range of experience and expertise of the Care Commission, which therefore has no observations to make. For the reasons stated above, the Zone Card was not seen by any member of the Commission's inspection staff
Fire Fighting Equipment
5. The presence or absence of standard fire fighting equipment is a matter that would fall within the normal observations of a Care Commission inspector[4798]. No concerns in respect of fire extinguishers were reported at either the announced inspection in March 2003 or the unannounced inspection in November 2003.
Nurse Call System
6. The Care Commission agrees that Rosepark had a nurse call system as described
CHAPTER 10: THE WASHING MACHINES
1. While the provision of sufficient washing machines to ensure proper laundry provision within a care home is essential, the installation and day to day operation of specific machines fall outwith the remit of the Care Commission as regulator. It therefore has no further comment to make on this chapter.
CHAPTER 11: THE ELECTRICAL INSTALLATIONS
1. The inspectors employed by the Care Commission have no specialised knowledge or expertise in the field of electrical installation, or in respect of electrical testing. In particular, inspectors are not expected to be familiar with the IEE Wiring Regulations referred to in Paragraphs 12 and 13. There is no mention of quality of electrical installations within the National Care Standards[4799] or in the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002[4800]. While the Care Commission does not dispute any of the particulars in this chapter, it has no further comment to make.
CHAPTER 12: MAINTENANCE OF THE ELECTRICAL INSTALLATIONS
1. It follows from the above that, as investigation of the Electricity at Work Regulations was not specified as forming part of the remit of the Care Commission, the matters referred to in this chapter fall outwith the knowledge and expertise of the Commission, which has no further comment to make.
CHAPTER 13: CUPBOARD A2
1. The general description of the cupboard and of the internal cupboard accords with the Care Commission's understanding of the cupboard and its contents. Whether the Health Board had previously requested that toiletries be kept under lock and key is not within the knowledge of the Commission; however, it was not a requirement after April 2002 that care homes keep such articles separate and secure. This was not specified in the National Care Standards, nor did inspectors require such action. The Commission's approach to this matter is underpinned by the recognition that every care home is the resident's home, with all that entails in respect of their right to maintain their own possessions.
2. The Care Commission has no observations in respect of the contents of the cupboard at the time of the fire as narrated in paragraphs 9-22.
CHAPTER 14: CROSS-CORRIDOR DOORS
1. The Care Commission agrees with the Crown submissions on the location and nature of the doors, and has nothing to add. So far as the changes referred to in Paragraph 3 are concerned, these fall outwith the knowledge of the Commission.
Practice at Rosepark
2. The Care Commission agrees that the practice of the home was to keep all but one of the fire doors open during the day. So far as practice at night is concerned, while this is outwith the direct knowledge of the Commission, it is accepted that corridor fire doors were not closed as they should have been. This was not known to the Commission. At the time of its inspection in 2003, it is likely that the notice at Production 334I, which referred to night staff making sure doors were shut, was affixed to the wall. The notice affixed to the Corridor 3/4 fire door referred to in paragraph 18 was clearly visible.
3. In addition, the staff training records made available to inspectors included a completed fire training questionnaire that referred to a requirement for fire doors to be closed. The understanding the manager[4801] had as to night-time door closing procedure is not a matter upon which the Commission can comment.
CHAPTER 15: BEDROOM DOORS
Construction at the time of the fire
1. The Care Commission agrees that the bedroom doors were not fire rated, and that some door closers had been removed. It has nothing to add.
Background and changes to bedroom doors
2. The selection of door closers at Rosepark, and the building standards then in force predated the inception of the Care Commission. Likewise, the Commission has no direct knowledge of any discussions that took place between the management of Rosepark and the Health Board prior to 2002. It is aware that several door closers were absent as at March 2003, but has no knowledge of when, and in what circumstances, they were removed. It therefore has no comment upon the submissions by Lanarkshire Health Board on this point.
3. The contents of the Health Board inspection report following the visit on 9th February 1999, and the reference to door closers, was not known to the Care Commission, which had only been furnished with the last three Health Board inspection reports, covering the period 7th February 2001-7th February 2002[4802]. At the time of the fire, the general practice of the Care Commission was to permit residents' doors to be left open at night if that was the resident's expressed wish. Nothing in the papers submitted to the Commission by the Health Board at the time of the handover suggested that any contrary view had ever been expressed to the management of Rosepark, or that any remedial action had been suggested.
Further dealings with the Fire Service
4. The construction and extension of Croftbank, and the proposed new building at the Rosepark site all predate the inception of the Care Commission. The submissions of the Crown, the observations thereon by Strathclyde Fire and Rescue, and any discussions that did or did not take place, are matters outwith the knowledge of the Commission, which has no comments to make.
Policy of the Home
5. There was no written policy regarding door closures at Rosepark. In terms of the National Care Standards, the Commission considered that, as the premises was the resident's home, that resident's wishes should be respected. Given the restricted mobility of many residents, and the risk of falling behind closed doors, the Commission was prepared to countenance bedroom doors being left open at night. The practice referred to in paragraph 26 was one that was, as at January 2004, acceptable to the Commission, although it would have been preferable for this information to be specified in the individual care plans.
6. At the time of the fire, there was no express policy on behalf of the Care Commission to require either (a) that residents' doors be closed at night regardless of their wishes, (b) that there should be a default position in favour of door closers save in particular situations such as medical emergency or where a resident was close to death, or (c) that, in the event a resident wished to leave their door open at night, there should be a device fitted to the door to effect immediate closure in the event of a fire.
CHAPTER 16: POLICIES AND PRACTICES AS AT 30th JANUARY 2004
Policy Manual
1. Apart from observing that the policy manual was made available to Care Commission inspectors in March 2003, the Commission has no observations to make. It does not dispute the contents as narrated here by the Crown.
Risk Assessment policy
2. Again, the Risk Assessment Policy manual[4803] was seen by inspectors in March 2003. The Commission has no other observations under this heading.
Fire Policy/Care plans/Smoking policy
3. The Care Commission agrees that the documents in the policy manual, the staff policy notice, the individual care plans and the home's smoking policy are as stated. Any comments the Commission may wish to make about the appropriateness or otherwise of any of these will be addressed in subsequent chapters. The manager appointed in terms of Section 7 (2) (b) of the 2001 Act at the time was Sadie Meany. Neither the Regulation of Care Act nor the regulations made thereunder specify any duties incumbent upon the manager. To that extent the Commission agrees with the submissions on behalf of Miss Meany.
CHAPTER 17: FIRE SAFETY NOTICES
The Commission has nothing to add to the Crown narrative in this Chapter.
CHAPTER 18: FIRE SAFETY; ROLES AND RESPONSIBILITIES
Management
1. Between the inception of the Care Commission in April 2002 and the date of the fire, the provider of the care service at Rosepark, in terms of the Regulation of Care (Scotland) Act 2001[4804] was listed as Thomas and Anne Balmer. The duties placed upon the provider are specified in the Act and the regulations made under it. The nature of the partnership and the division of responsibilities within the partnership, in particular in respect of fire safety, is not a matter within the knowledge of the Commission. In addition to any obligations arising from their status as service providers, Mr and Mrs Balmer also had obligations in respect of health and safety within the premises. The manager of Rosepark at the time was Sadie Meany. Neither the Act nor the regulations made thereunder specify the duties of the manager. To that extent the Commission agrees with the submissions on behalf of Miss Meany.
2. The manner in which policy was formulated, the duties initially perceived as incumbent upon matron, the specific duties of the manager after the inception of the Care Commission on 1st April 2002, and Miss Meany's understanding of same immediately prior to the events of 31st January 2004 fall outwith the knowledge of the Commission, although it notes Miss Meany's evidence that she had some concerns about the home's fire practices and procedures, and that she wished to discuss these with the Care Commission[4805]. The Commission cannot comment of the apparent differences in understanding between Mr. Balmer and Miss Meany, as the proposed discussions referred to in evidence did not take place due to the fire.
Staff Nurses/Joe Clark
4. The precise role of individual staff members is a not a matter falling within the remit of the Commission, which has no further comment to make.
CHAPTER 19: EMERGENCY PLAN
1. It now appears clear that the emergency plan for Rosepark up until January 2004 was as stated, and that it was not committed to writing in any of the home's documents. The fire notices seen by Care Commission inspectors[4806] and the documents contained within Crown Production 27 described a different policy. Care Commission inspectors were unaware that the home's practices differed from the visible notices and policy documents. The reasons for this, and the implications arising therefrom, will be addressed in a later chapter. The extent of detailed knowledge and understanding of the policy by each individual staff member, and the origin of the policy fall outwith the knowledge of the Commission.
2. The Care Commission agrees that the Crown contention at Paragraph 27.1, which accords more with fire notices than actual policy is correct, and that the policy as operated in practice was therefore deficient. With reference to the submissions made on behalf of the Balmer partnership, the Care Commission does not, given the clear terms of the fire notices on the walls and in Crown Production 27, consider that the Sheriff Principal should find it "startling" that inspectors did not question staff in detail about fire alarm procedure. The matters raised by Strathclyde Fire and Rescue in this chapter fall outwith the knowledge of the Commission, has no comment to make.
CHAPTER 20: FIRE TRAINING AND FIRE DRILLS
General Observations
1. The Care Commission concurs with the Crown's general observations on fire safety training and has nothing to add.
The opening of the home/Talks by professional fire officers
2. All matters adduced by the Crown under these subheads pre-date the inception of the Care Commission and falls outwith its sphere of knowledge. In respect of the absence of annual lectures, the home advised in its first return to the Care Commission in December 2002 that there was a record of "fire safety drills/checks, and training compliant with Fire Service guidance[4807]". It was stated that there had been a Fire Brigade inspection of the premises in July 2002 and that "no reports given any more"[4808]. The position as stated in the return submitted in January 2004 was effectively no different[4809]. The implications and actions arising from these statements will be addressed in a later chapter.
The video
3. While inspectors were aware of its existence, this was not viewed by them. Care Commission inspectors would not, as a matter of routine, examine and make judgments upon individual elements of staff training such as generic training videos, although if, during inspection, evidence of poor care provision became apparent, the Commission might require evidence of an improvement of training in a specific area of care by the time of the next inspection.
The questionnaire
4. The questionnaires were retained within staff files, a number of which were perused by inspectors. They did not carry out a comparative analysis of specific answers to specific questions, as this would greatly exceed their remit as inspectors on behalf of a care regulator, and thus any discrepancies between correct policy and practice at Rosepark did not emerge from perusal of these files. The existence of induction training, which included fire safety training, was noted in all staff files. It is accepted that there is no record of ongoing fire safety training in these files. Making specific findings relating to the type and quality of fire safety training, as appears implied in the submissions in this chapter on behalf of the Balmer partnership, falls outwith the statutory remit of the Care Commission. With regard to the Crown's observations at paragraph 77, the implications arising from the lack of specialised fire safety training and the absence of specific fire safety standards in the regulations in force at the time governing Care Commission inspections[4810] will be addressed in detail in later chapters.
The issue raised with the Care Commission
5. The Commission agrees that continual fire safety training for staff was identified as an issue by Miss Meany in the self-assessment return submitted on 20th January 2004. Under normal circumstances an inspection would have taken place on 24th February when this matter, having been specifically raised by the manager, is likely to have been discussed in detail. Unfortunately, the fatal fire intervened.
Fire Drills
6. The dates of fire drills are recorded in the register (Crown production 27). The content of these drills is not a matter that would routinely have formed the subject of inquiry by a Care Commission inspector in the period prior to the fire. The Commission therefore makes no further comment under this subhead.
Fire safety training of staff who were on duty on the night of 30-31 January 2004
7. This is a matter that falls outwith the knowledge of the Commission. While it does not dispute the Crown narrative, it has no further comment to make.
CHAPTER 21: EVACUATION AND ITS DIFFICULTIES
1. The Care Commission agrees that the home's evacuation policy is as stated, and that it was listed on the fire safety notice and questionnaires.
2. With reference to the difficulties in carrying out a progressive horizontal evacuation of a corridor containing fourteen residents, all of whom required a degree of assistance, the Commission notes the results of Miss Midda's exercise, and her observations on the practical difficulties. The implications of this in respect of (a) Commission practice prior to the Rosepark fire, and (b) between the fire and the coming into force of the Fire (Scotland) Act 2005 will be addressed in later chapters.
Failure of management at Rosepark to address these issues
3. The matters raised under this subhead fall outwith the knowledge of the Care Commission. It notes, however, the reference to SHTM 84 as the standard to which Mr. McNeilly was working, and observes that that document was not readily available in the period preceding the fire.
CHAPTER 22: THE MILLENNIUM BUG AND THE FIREMEN'S STRIKE
The "Millennium Bug"
1. The events raised in paragraphs 1-3 predate the inception of the Care Commission, which has no comment to make.
The Fire Brigade Strike
2. Being aware of the level of disruption that could be occasioned by a strike of emergency workers, the Care Commission circulated appropriate advice from Scottish Ministers as stated. The actions of Mr Balmer and the Matrons of Rosepark and Croftbank are not known to the Commission, but it confirms that the fire safety notices (Productions 334H and 334I) were still displayed as at March 2003, and were clearly still affixed to the walls in January 2004.
CHAPTER 23: FALSE ALARMS
1. As a general proposition the Care Commission agrees that "frequent false alarms create an acknowledged problem in relation to fire safety. An organization which is subject to frequent false alarms can become complacent. Staff come to assume that every time the alarm operates it is a false alarm". The frequency of false alarms at Rosepark, the level of action or lack thereof undertaken by staff, any attendance by Fire Service personnel and the recording policy or lack thereof for false alarms are all matters outwith the knowledge of the Commission, and upon which it offers no comment. In particular, while the description of the events in December 2003 gives rise to a number of concerns, this is something of which the Commission was unlikely to become aware until its scheduled inspection of February 2004, if at all.
CHAPTER 24: MR REID'S INVOLVEMENT
1. Mr Reid's personal history, and the circumstances in which he came to become involved with Rosepark Care Home, are matters outwith the knowledge of the Care Commission. Likewise, the precise terms of his remit and his knowledge of health and safety legislation are not matter on which the Commission makes any comment.
Production 216
2. Production 216 appears to have been completed in January 2003 by Mr. Reid. It was available to Care Commission inspectors when they attended Rosepark in March 2003, and was seen by them. The manner in which documents were generated is not something on which the Commission can comment. The Care Commission agrees that certain parts of the text are as stated by the Crown in Paragraphs 15-20.
The Background to Production 216
3. Given the accepted chronology of the pre-inspection return being completed in November/December 2002, the question regarding up-to-date risk assessment being included, and the completion of the Risk Assessment Report (Production 216) in January 2003, it is reasonable to conclude that the question about review of risk assessment was the catalyst for the preparation of the report. Again, it now appears clear that, as at the date the self-assessment return was submitted, there was in fact no up-to-date risk assessment, and that the answer given was not correct. It is also reasonable to conclude, from the absence of documentary evidence of a previous assessment, that this was the first and only risk assessment undertaken before the fire.
The Preparation of Production 216, and the response to it
4. The matters referred to by the Crown in paragraphs 26-35 fall outwith the direct knowledge of the Commission. With reference in particular to paragraph 35, the Commission observes that the matters referred to in this part of the assessment are of the type that would be observed by the informed lay person. These observations were similar to those made by Care Commission inspectors. So far as the response by the management of Rosepark is concerned, this is not a matter upon which the Commission is able to comment.
CHAPTER 25: Visits to, and Re-inspections of, Rosepark by Officers of Strathclyde Fire and Rescue Service ("SFRS") under section 1 (1) (d) of the Fire Services Act 1947
1. The terms of Section 1 (1) (d) of the Fire Services Act 1947 are agreed. The precise operation of the subsection appears to have been at the discretion of the fire authorities. While the Commission is not in a position to comment upon the interpretation of the section or its practical operation prior to 2002, it is clear that practices within different Scottish fire authorities at the time of the Rosepark fire were not uniform. It does not propose to address in detail any issues in respect of operational firefighting.
2. The systems described by Sir Graham Meldrum and Hugh Adie appear entirely appropriate. The manner in which Strathclyde Fire and Rescue Service undertook these visits, and the guidance under which the inspections were carried out, is not a matter upon which the Commission can comment. Likewise, the inspection history and precise operational details of what would be inspected are not within the Commission's knowledge.
3. It is now clear that Rosepark was not designated as a "special risk" between its construction and the date of the fire. The implications of this, so far as they may have affected the practices of the Commission, will be considered in later chapters.
Visits/re-inspections
4. The Commission has no comment on the matters covered under this subhead, both by the Crown and in submissions by Strathclyde Fire and Rescue, which fall outwith the Commission's remit as care regulator. It makes no observations on the access routes for fire appliances, the knowledge or lack thereof as to the correct entrance, or upon locking of gates.
CHAPTER 22A (2): RISK CATEGORISATION OF ROSEPARK
1. While the factual matters in respect of the conduct of the risk assessment report are not within the knowledge of the Commission, it concurs in the view that, given the general ages and level of dependence of the residents within Rosepark, a relatively high risk status should have been allocated by the Fire Service. It therefore appears appropriate that Rosepark be awarded an enhanced status. The implications that derive from the fact that this resulted in two appliances being the predetermined attendance will be addressed in later chapters.
2. Given the number of non-ambulant residents, the Commission considers it reasonable that the opinion of Sir Graham Meldrum in respect of additional weighting factors based upon the level of dependency of residents be preferred, and that Rosepark should have been allocated a higher status than one requiring the attendance of only two appliances. Whilst noting the points made on behalf of Strathclyde Fire and Rescue, the allocation of a higher weighting to premises occupied by over forty physically or mentally dependent persons would have been a reasonable precaution.
CHAPTER 26: THE INTERACTION BETWEEN ROSEPARK AND LANARKSHIRE HEALTH BOARD 1992-2002
The statutory framework
1. The relevant terms of the Nursing Homes Registration (Scotland) Act 1938, and the Nursing Homes Registration (Scotland) Regulations 1990, are as stated by the Crown. The Care Commission notes in particular the obligations placed upon the "person registered" by Regulations 8 and 13.
Relevant non-statutory guidance
2. The Nursing Homes Scotland Core Standards and the 1999 guidance notes issued by Lanarkshire Health Board pre-date the inception of the Care Commission, and were not used following the assumption by the Commission of responsibility for care homes in April 2002. It therefore has no comments on the guidance itself, or upon the understanding of the 1990 regulations that underpinned it.
Composition of the Health Board inspection teams
3. This was a matter solely at the discretion of the Health Board. The Commission has no comment to make.
Approach of the Health Board to its statutory responsibilities
4. It is clear that the terms of the 1990 Regulations expected that Health Board inspectors would exercise a high degree of scrutiny, and would expect that deviation from the standards prescribed would result in action being taken, at least involving consultation with the fire authority. It further appears from the evidence that inspectors in Lanarkshire carried out their inspections to a lower standard than that required by the Regulations, and that their understanding of the relative roles of the Health Board and Fire Service was erroneous. The transmission of this information by way of copy reports may ultimately have affected the understanding of the role of inspectors in fire safety acquired by the Care Commission in 2002.
5. Edward Hattie's understanding of the role of the Fire Service was factually incorrect. It also appears that he did not either require or expect inspectors to carry out investigation of specific procedures in care homes.
6. Thomas Lynch's understanding of the respective roles of the Health Board and Fire Service was also factually incorrect. His understanding that the Fire Brigade issued annual letters of comfort was erroneous. It should be noted that there is no evidence that inspectors reported on the absence of annual updates. His understanding of the duties of the Fire Brigade conflicts with the terms of the 1990 Regulations.
7. Mairi McLeod's evidence that she understood a home's fire policy was one that had been approved by the Fire Service was likewise based upon a misconception.
8. The Care Commission has no additional observations to make in respect of Yvonne Lawton's evidence, nor that of Margaret McCallum and Angela Westrop.
Sufficiency and suitability of fire drills
9. As a general observation, the Commission notes that a record was kept of fire drills in Crown Production 27, and that generally a list of those participating was retained. In practice, it appears that the inspection was not undertaken to the standard required in terms of Regulation 13 (2) (i).
Bedroom doors
10. Given that Care Commission thinking on this issue was unaffected by any previous policy, if indeed there was one, operating during the period when the regulation of Rosepark was the responsibility of Lanarkshire Health Board, it elects not to make any comments on this part of the evidence.
Inspection visits at Rosepark
11. The Care Commission has no specific observations to make in respect of the individual inspection visits, save to observe that it appears that the "Letter of Comfort" dated 25th February 1992[4811] was the only document issued by Strathclyde Fire service, and that on occasions there appears to have been some confusion between "fire drills" and "fire alarm tests". It observes that the bulk of these reports (all save the last three) were not forwarded to the Care Commission. Thus the contents of the reports were not known to the Commission, and the inspections preceded the inception of the Commission.
Conclusions on approach of Health Board to its statutory responsibilities
12. Based upon the markedly lower priority given to fire safety in the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002[4812], it is reasonable to draw the inference that these followed from the understanding that the Health Board did not consider itself as having a role in assessing the sufficiency and suitability of fire precautions in nursing homes. Rather, it considered that its role was limited to confirming the existence of documents vouching that a nursing home was complying with its statutory obligations. There was a general lack of understanding of the limited role of the Fire service in the inspection and enforcement process.
CHAPTER 27: THE CARE COMMISSION AND ITS INTERACTION WITH ROSEPARK 2002-2004
The Crown's Proposed submissions under Section 6 (1) (e)
1. It is accepted that in terms of the legislation referred to, there was no intention to change the level of scrutiny applied to fire policy in residential care homes. It remains the case that the effect of the coming into force of the Regulation of Care (Scotland) Act 2001 and the regulations made thereunder was to create a less stringent inspection regime, and that there was no provision in the 2002 Regulations directing the Commission to consider the sufficiency and suitability of the procedure to be followed in the event of a fire or other emergency or the sufficiency and suitability of the recorded fire drills. Scrutiny of fire precautions under the statutory regime in place after 1st April 2002 and the National Care Standards resulted in the fire safety element of inspections being less than was required in terms of the preceding statutory and regulatory regime.
2. The Care Commission does not consider that, if the court finds the matters proposed by the Crown in paragraphs 10-13 of this chapter proven, that the conclusions proposed in paragraphs 14 to 16 necessarily follow. There was evidence of the recording of fire tests, and evidence in the form of fire notices and written records of the existence of appropriate policies, although it transpired that these were not in fact operated as written, In terms of their investigations at Rosepark, the inspectors' observations were not manifestly ill-founded.
The Regulation of Care Project
1. Following publication of the White Paper "Aiming for Excellence - Modernising Social Work Services in Scotland"[4813], Scottish Ministers set up The Regulation of Care Team, whose objectives were to set up the Scottish Commission for the Regulation of Care. For the purposes of these submissions, and given that the Commission does not take issue with Paragraphs 8-12 of the Crown submissions, it is unnecessary to examine in detail the perceived deficiencies in the previous regimes under which care was regulated, as a result of which it was felt appropriate to create the Care Commission. In order to create this body, it was necessary to draft and enact primary and secondary legislation. In addition, the creation of national standards to apply to all providers throughout the care profession in its broadest terms was necessary.
2. The team, which was led by Mrs Elizabeth Hunter, was staffed by professional and policy civil servants, and also consultants and secondees from the Health Boards and local authorities which had hitherto been responsible for regulating care. In addition to its legislative responsibilities, the team was responsible for preparing the National Care Standards against which all care services would be inspected. The Commission confirms that objective was for care services to be focused on the needs of users of services, and for the systems of regulation to reflect that objective in an aspirational, rather than a regulatory fashion.
3. The membership of the National Care Standards Committee (NCSC) did not include any representative from the Fire Service, nor did it include any representative from NHS Legal Services[4814].
4. The White Paper was drafted and circulated several years before the appointment of the Commission's executive staff. It is, of course, correct that fire safety was not mentioned in the White Paper. It appears to have been the intention of the Regulation of Care team, and thereafter of the National Care Standards Committee, that the existing fire safety arrangements would be transferred in their entirety to the Commission. In the absence of Fire Service and NHS legal input into the process of setting up the national standards, it is not apparent how this was to be achieved, or what steps were intended to verify the transfer of existing arrangements. Assuming that "in relation to fire safety it was not the intention of government that the establishment of the Care Commission would result in any diminution in the power to regulate matters of fire safety. The understanding and expectation was that the existing system was being transferred to the Care Commission" it might be expected that the precise terms of the 1990 regulations would be considered by NCSC, with a view to either ensuring complete transfer of fire safety powers and responsibilities, or drafting specific new regulations or guidance. Evidence shows that this did not take place. No specific advice was sought at the consultation stage from relevant professionals about the legislative functions and powers of Fire Services and Health Boards in relation to fire safety.
5. As stated in Paragraph 20 of the Crown submissions, Mrs Hunter was under the same erroneous impression as the Health Board inspectors. There is no evidence that fire safety was discussed to any extent during the consultation process. It was not intended that the Care Commission be afforded a supervisory role in respect of fire safety, this being believed to rest with the Fire service.
6. The ethos of the Care Commission was designed to be wholly different from that of the Health Boards. The focus of regulating the care industry transferred from that of an inspection system based upon regulatory compliance to one whose regulatory system examined the performance of a care home from the perspective of a service user. While the draft National Care Standards[4815] were prepared in the third person, the final published version for use by the Commission[4816] was specifically designed from the perspective of the service user. It was designed to show the standard to which a provider should aspire, and the standards a user should expect to find in a number of specified areas of everyday life. The standards did not include any fire safety code, or specific fire safety advice. Given the matters stated above, this was to be expected. The Care Commission's intended role in fire safety matters would simply be checking that certain things - such as that residents knew what to do if there was a fire, or if there were fire drills and that they were recorded - were happening. The Commission was not given statutory responsibility for supervising the fire safety of care homes.
Synopsis of Legislation
7. The Care Commission agrees that the Crown has accurately listed the salient parts of the Regulation of Care (Scotland) Act 2001[4817], which came into force on 1st April 2002, summarised at paragraphs 1-18. Rosepark was a care home service that fell under the jurisdiction of the Act.
8. Upon the coming into force of the 2001 Act, the Nursing Homes Registration (Scotland) Act 1938 was repealed.
9. The Statutory Instrument creating regulations in terms of Section 29 of the 2001 Act was the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002[4818]. The Commission does not take issue with the parts of these Regulations, or the National Care Standards, summarised at paragraphs 20-28. It will of course be noted that the terms of Regulation 19 impose significantly lower obligations upon the service provider than had been required in terms of Regulation 13 of the 1990 Nursing Home Regulations. It appears that the terms of the previous regulations were not brought to the attention of those who drafted the 2002 regulations.
Practical issues arising from the establishment of the Care Commission
10. As stated by the Crown, the appointed Chief Executive had not been involved in drafting the Act or the 2002 Regulations. Presumably as a result of the misperception referred to above, on the Commission coming into operation on 1st April 2002, none of the skeleton staff then in place had any expertise in fire safety.
11. The principal activity of the Commission in its early days was the assimilation of a large amount of information and documentation from diverse sources, with a view to developing a coherent and workable national approach to the whole care sector. Even without the large percentage of staff opting to take voluntary redundancy, it was likely to take close to two years to establish consistent practice known to and understood by both staff and service providers. Many of the difficulties as described by Ronald Hill are accurately summarised in paragraphs 6 and 7.
12. Rosepark had been regarded by the Health Board as a well run home about which no serious concerns had been expressed. As a result of this it was not regarded as an urgent inspection priority. It was first contacted in November 2002, and first inspected in March 2003.
13. At its inception, the Commission had no formal arrangement with any of the Scottish fire authorities regulating their respective positions in respect of matters of fire safety. At some point towards the end of 2002 or (at the latest) the beginning of 2003 discussions commenced between the Commission and the Fire Service, with a view to it entering into Memoranda of Understanding with each of the relevant fire authorities. This process had not concluded by the time of the fire. It later transpired that neither body had been fully cognisant with the duties, and limits upon the duties of the other. This will be addressed more fully in a later chapter.
The Inspection Methodology
14. The Care Commission's inspection methodology was developed by a project team under the direction of Liz Norton. It was based upon the National Care Standards as drafted by the NCSC prior to the inception of the Commission. Central to the new inspection process was examination of the experiences of the people using the service, rather than a process that concentrated on the physical and administrative standards in place. As stated in paragraph 8, inspectors were largely drawn from a social work/nursing background.
15. As the Care Commission's remit was very much to focus on the experiences of people as opposed to what Ms Norton termed inputs and physical standards, and given that there were twenty separate standards contained within the National Care Standards, it was not feasible in practice for every standard to be examined in every care service registered under the Act. The majority of the standards did not raise issues of personal safety. Self-evaluation by service providers formed a significant part of this process; at Rosepark manager Sadie Meany identified areas for improvement and reported these to the Commission[4819].
16. Fire safety had not been identified as a significant issue in either the legislation or the standards themselves. At the time responsibility for Rosepark was transferred from the Health Board to the Commission, there were no expressed concerns regarding fire safety in recent Health Board reports. There were no Care Commission inspectors or senior staff with a background in the Fire Service or fire safety. They did not have the level of knowledge or expertise that would enable them to carry out a fully detailed fire safety analysis of a care home.
17. It was the understanding of the Commission that throughout Scotland Fire Brigades continued to attend care homes and advise on matters of fire safety. In this regard they were to an extent bolstered by the former local authority practice referred to by Liz Norton[4820] and summarised by the Crown at paragraph 9. Given this understanding, Question 16 of Section Four of each home's pre-inspection return asked "Is there a record of fire safety drills checks and training compliant with Fire Brigade guidance?"[4821] Care Commission inspectors were informed lay people, rather than experts in fire safety matters. They would, however, routinely look to see that fire extinguishers were properly sited, presented as regularly serviced and they might well ask selected members of staff if, during induction, they had been acquainted with the evacuation procedure and where the fire exit points were situated. They would verify the existence of a fire register, such as formed Crown Production 27.
18. Regulation 19 (3) of the 2002 Regulations[4822] imposed a duty upon the service provider to keep a record of fire or other emergency procedure, and of all fire drills or alarm tests that had been conducted. It did not seek to impose any minimum standard, training obligation or appropriate procedure. Inspectors were therefore enjoined only to verify the existence of procedures, not to examine and report upon their adequacy (a task for which they were not trained). Likewise, they required to be satisfied only of the existence of an up to date risk assessment, not to assess its suitability.
19. Given that the Commission's prevailing ethos was user-centred rather than administration-centred, and given that some residents in care homes prefer to sleep with doors open, the Commission had no policy requiring that bedroom doors be closed at night. Nor, in the period prior to the fire may it be supposed that inspectors had knowledge of improvements in door closer technology, or the expense implications thereof.
20. The expertise of inspectors also did not extend into electrical matters. The pre-inspection return required the home confirm the existence of a current maintenance contract for, inter alia, electrical appliances. It was not intended that inspectors go behind this, merely that it be confirmed that evidence of such a contract existed. Inspectors had no training in matters relating to the installation and maintenance of electrical equipment. The contracts seen at Rosepark complied with the requirements of an inspection.
21. The Commission understood that the Fire Service carried out attendances at care homes as a matter of course throughout Scotland. Up until the fire, the precise nature and extent of these attendances, and what action if any might follow any such attendance was not known to either inspectors or senior staff within the Commission.
22. In evidence, Jacqueline Roberts, the Chief Executive of the Commission, agreed that it did not put a focus into fire safety policies and procedures in the period prior to the fire[4823], and contrasted this with the later period after the appointment of Alan Sheach as fire safety adviser. It was accepted in evidence, and is accepted for the purposes of this Inquiry, that a greater emphasis could have been put on assessment of fire safety procedures, rather than solely upon the record keeping required in terms of Regulation 19. The advice given prior to the fire was that inspectors should check for the existence of fire safety policies and procedures, and verify that these were available to, and understood by, staff.
Approach to training
23. Prior to the fire the Care Commission did not employ a fire safety officer, nor did it provide specialised fire safety training for inspection staff. The focus of training was upon the more specifically welfare and care oriented aspects of the National Care Standards, as these were the matters to be addressed specifically in the course of inspections. It follows therefore that neither Morag McHaffie, Marie Paterson nor Mala Thomson, the two staff members who inspected Rosepark and their team leader, had any expertise in matters of fire safety, nor were they expected to have. In the course of their inspection they did not undertake a detailed fire safety assessment.
The Care Commission Inspections at Rosepark
24. The first inspection of Rosepark, undertaken by Morag McHaffie and Marie Paterson, took place on 20th March 2003. For the reasons stated by the Crown, it had not been a priority target for inspection.
25. On attending the home, inspectors expected to be shown various documents as required. These included an up to date risk assessment, and purported to include a Firemaster's Report. Inspectors were not required or expected to undertake qualitative analysis of such documents. At Rosepark, inspectors were shown Mr Reid's risk assessment from January 2003[4824]. It is unclear, given what is now known about Fire Service procedure, what exactly homes were expected to provide by way of a Firemaster's Report, and it is clear that no up to date report or certificate from the Fire service existed, or was likely to exist, at Rosepark. While it may have been the case that in certain parts of the country Fire Service personnel did attend care homes, it is now clear that no form of formal certification existed after the issuing of the initial "goodwill letter".
26. During the course of the inspection, the home's fire log[4825] was seen by Commission inspectors, as was the letter headed "Alex Ross Electrical"[4826]. It is not clear from the evidence that Production 570 was seen by inspectors. Evidence is also unclear as to whether fire drills were actively discussed with staff.
The Pre-inspection return
27. This was completed in December 2002 and forms part of Crown Production 818. The record of fire prevention training lists the names only of a proportion of the total staff. Had fire safety been an assessed priority at inspections, and had inspectors been trained in fire safety, this absence would in all probability have been cause for concern. However, given the limited obligations imposed by Regulation 19, and the absence of specialised training, this omission was not noted and acted upon.
28. It is now clear that the reference to "Fire Brigade guidance" in Question 15 gave rise to confusion, as care homes did not require a fire certificate, and Fire Service personnel did not routinely issue guidance to care home proprietors and managers. The Fire Precautions Log Book[4827] issued by Strathclyde Fire Brigade offered guidance, but its use was not mandatory, and in fact it was not utilised at Rosepark. In addition, it proceeded on the assumption that the premises had a fire certificate that "has recorded the fire precautions needed to protect your property in the event of a fire"[4828].
29. The risk assessment report from Mr. Reid dated January 2003 recommended that fire drills be carried out every six months. This accorded with the Fire Brigade advice. It appears that this recommendation may not have been noted by inspectors, as it was not noted or referred to in the final report. It further appears that the purported Fire Brigade visit in July 2002 was not verified, and that no comment was made about the only goodwill letter now being eleven years old. Fire safety not being an area of specific concern in the inspection, which concentrated on five specific care standards, namely standards 4, 5, 6, 13, and 15, and the statutory obligation upon the service provider only being to keep records of procedure, these matters were not followed up.
30. The self evaluation return, insofar as it related to matters of fire safety, did not on the face of it disclose any matters of obvious concern to the informed inspector. Records did show the existence of weekly alarm checks and fire drills, although the frequency of drills was less than twice per year.
The first inspection of Rosepark by the Care Commission
31. The Care Commission does not take issue with the Crown's factual summary at paragraphs 30-45. It observes that Miss McHaffie, who examined Standard 5 "Management and Staffing Arrangements", was satisfied that Production 656, which was located on public display on the upper ground floor contained an appropriate fire procedure. She would not have gone further in discussing the procedure with anybody[4829]. In addition, employment records disclosed that staff had received fire training and orientation on induction. While the absence of refresher training in fire safety or ongoing fire safety training might have been apparent to a specialist, the records showed the existence of fire training, and there were signs in the home detailing fire safety procedures that seemed acceptable in themselves. In respect of the home itself, Miss McHaffie indicated that if she had seen something that appeared to be a fire risk, she would have noted it, discussed it at feedback and contacted the Fire Service[4830].
32. So far as disconnection of door closers is concerned, this was not an issue on which the Commission had a fixed policy. In respect of the practice of leaving some residents' doors open at night, again the Commission had no fixed policy; the differing views of Miss McHaffie and Mrs Paterson demonstrate this. The issue of doors being left open at night was not referred to in the final inspection report, and thus it appears that inspectors may not have discussed this with staff.
The Inspection Report
33. The inspection report, which may be seen by the public, was sent to the owners of Rosepark in June 2003. It included no concerns about fire safety. With reference to the Crown's comments at paragraphs 51 and 52, the discrepancy between the home's fire notices and the policy in place had not been asked about, and thus had not been discovered. Inspection staff took the displayed fire notices at face value. It is now clear that the home's actual fire policy of checking whether there was a false alarm before taking any action was not written down at all. Inspectors, having not carried out detailed investigation, were unaware of this policy. While the policy as apparently operated was not in accordance with best practice, the written policy in Production 656 did conform to Fire Brigade guidance. On the face of it, there was evidence of the existence of appropriate policies in the home.
The follow-up inspection
34. This unannounced inspection did not examine any fire safety issues, but concentrated on concerns identified in the previous report. As the deficiencies in fire safety training had not been identified, these were not the subject of further inspection.
Preparation for the 2004 Inspection
35. The Care Commission does not demur from the factual matters adduced here by the Crown. The reference to the home being "registered" with the Fire Authority was clearly erroneous. An issue in respect of continued fire safety training was identified by the manager Sarah Meany as an area for development/improvement. The inspection was scheduled to take place on 24th/25th February 2004, when it is likely that any concerns would have been discussed. As a result of the fire, the scheduled inspection did not take place.
Concluding Observations
The evidence led at the Inquiry demonstrates that the Care Commission was not qualified to examine fire safety issues in any depth. Its approach, derived from the 2002 Regulations and National Care Standards, was one which concentrated on a process of verification. In terms of the inspection regime that operated prior to the coming into force of the Fire (Scotland) Act 2005, it is possible that members of the public reading inspection reports might have drawn a degree of reassurance from comments made in regard to fire safety that was potentially greater than it should have been.
CHAPTER 28: THE EVENTS OF 30-31 JANUARY 2004
1. While no member of the Care Commission staff was present at these events, and thus the Commission has no direct knowledge of the events, given the crucial importance and tragic consequences of the events at Rosepark, it offers a number of observations on the practices within the home.
2. The Commission does not dispute in any way the details of staff on duty during the backshift or nightshift. The use of the washing machines and the staff handover appear entirely as would be expected.
3. In the Commission's view, the role of nurse in charge should be clearly defined and understood by all staff. In addition, the nurse in charge should be conversant with the home's fire safety and evacuation policy.
4. The Commission has no observations to make about the specific activities of individual members of night shift staff in the period between 2115 hours on 30th January and 0420 hours on 31st January. The activities described present as entirely routine in a care home for the elderly. The Commission has no observations on the smoking policies then operating within Rosepark.
5. Evidence which was unchallenged, and which the Commission therefore finds to be acceptable, is that the fire alarm first sounded around 0428. At that point in time, Ms Queen and Mrs Richmond were on the lower level attending to Nana Murphy. Mr Norton was attending to Mrs McAlinden in the toilet next to the Rose Lounge. Miss Carlyle was in, or in the vicinity of the office.
6. While it is more properly for others to engage in detailed analysis of the staff's initial response to the fire alarm, the Commission as regulator observes that there appears from the CCTV evidence to have been a lack of structured response to the alarm, and no evidence of urgency or thorough investigation. While evidence on this point as not clear, it seems more likely that the alarm panel identified the fire as being in Zone 3, identified on the zone card as "Ground - Rooms from corner to stairwell"[4831]. It is established beyond doubt that no staff member investigated either Corridor 3 or Corridor 4, and that it was nine minutes between the sounding of the alarm and the 999 call being made. Smoke was first seen by staff in the vicinity of the lift shaft after the fire alarm sounded for the second time.
7. The fire alarm panel was a replacement panel installed a matter of days previously, and staff members stated in evidence that this caused confusion. It now must remain only a matter of conjecture whether this replacement panel would have been addressed as a training issue had the Commission attended as scheduled in February 2004.
8. It is further established beyond doubt that the 999 call referred to the premises entrance as "Rosepark Gardens", and referred to the fire as being in the lift shaft. Whether either these errors contributed materially to later events is for others to assess.
9. By around 0440 hours it was clear to Mr Norton and Miss Carlyle that there was a major fire in Corridor 4, and that they could not enter the corridor. They immediately began evacuating residents from the lower floor. The first fire appliance arrived at Rosepark shortly after 0442. The history of the various attendances of the appliances and the crew members who took part in operations are not disputed by the Commission. The actions of the various firefighters, the times of their entry to various parts of the building and the consequences of decisions made during the incident fall outwith the remit of the care regulator, which does not propose to analyse these actions in detail. It does observe that initial attendance was not to Rosepark Avenue. When the first firefighter attended, evidence tends to show that staff in the foyer remained unaware of the seriousness of the incident developing, although two other staff members' whereabouts were not known. The first firefighters who attended were not familiar with the layout of the building, and did not immediately know how many persons resided there or how many, if any, were unaccounted for.
10. Some minutes into the incident, it became clear that this fire required to be designated "persons reported", meaning that there are persons situated within the building that is on fire. No additional resources were sought at this point. It appears from the evidence that the officer in charge (Station Officer Campbell) had not addressed his mind to either verifying the precise location of the fire or to the number of residents in the upper corridor that had yet to be entered. Certain assumptions were made, according to the evidence, about the location of the fire that are now known to have been incorrect. It appears therefore that the incident was under resourced, and this affected the ability of firefighters to check every room and evacuate residents. In respect of the interpretation of the events by Strathclyde Fire and Rescue, as any difference in interpretation relates to matters of operational firefighting, the Commission has no position as to which should be preferred.
11. It appears from other evidence to be addressed later that ten residents had already died before the arrival of the first fire engine. Their details are summarised in Chapter 5. Several other residents were rescued alive from Corridors 3 and 4, four of whom later died in hospital. Evidence discloses that six casualties were removed from Corridor 3; of these Margaret Gow, who occupied Room 18 and Isa McLachlan, who occupied Room 20, later died in hospital. In Corridor 4, Isabella McLeod who occupied Room 11, and Robina Burns, who occupied Room 10 were rescued alive but died later in hospital. It appears that the rescue of Mrs McLeod was affected at approximately 0509 hours and that of Mrs Burns was effected at approximately 0539-0540 hours.
12. The Care Commission understands that the effects of smoke inhalation upon the four above named persons by the time they were removed from the smoke logged corridors was such that their prospects of survival were low.
CHAPTER 29: THE POSITION OF BEDROOM DOORS ON THE NIGHT OF THE FIRE
1. The Care Commission agrees that the various sources of evidence in this chapter are as stated in paragraphs 1-8. It makes no comment on any practice that may have existed prior to 1st April 2002.
2. So far as the wishes of residents are concerned, the Commission agrees with the Crown summary of the evidence given by relatives, which was not challenged, and has nothing to add.
3. In respect of the evidence of staff members, given the passage of time and the sequence of events that occurred in the morning of 31st January 2004, it appears that their recollection does not materially conflict, so far as they recall door positions, with the apparent wishes of the residents.
4. The Care Commission does not take issue with the conclusions proposed by fire service personnel. Given the information about rescues from Rooms 10 and 11 in the preceding chapter, and of the deaths in Corridor 4, these conclusions appear inescapable.
5. The Care Commission has no observations to make in respect of Professor Purser's calculations. His conclusions fall outwith the knowledge of the Commission, which does not, however, take issue with either his calculations or his conclusions.
6. Likewise, the photographic evidence was not challenged in evidence, and thus the conclusions drawn from these are not challenged by the Commission. The same consideration applies to the evidence adduced from the forensic scientists. The Care Commission does not challenge the summary set out at Paragraph 33 on pages 28-29, and accepts that there was a practice of permitting bedroom doors to be left open at night, generally to respect the wishes of those occupying the rooms.
7. The Commission therefore agrees that the Crown summary appears to contain accurate conclusions as to which doors were open and closed at the time of the fire.
CHAPTER 30: THE LOCATION OF THE FIRE
1. The Care Commission agrees in its entirety with paragraph 1 of the Crown submissions here.
The seat of the fire
2. The Care Commission likewise agrees that the evidence clearly discloses that the fire began in Cupboard A2 within Corridor 4. As the precise location of the point of ignition is not a matter within either the knowledge or the statutory remit of the Commission, it expresses no view as to the precise point within the cupboard that was either the seat of fire or the initial point of combustion. While it does not challenge the reconstruction evidence, the matters raised in this chapter, particularly in respect of reconstructive testing, are not within the knowledge or authority of the Commission, which expresses no further view.
CHAPTER 31: DEVELOPMENT OF THE FIRE - THE BRE WORK
1. The reconstructive work undertaken by the Building Research Establishment covers matters outwith the remit of the Care Commission as statutory regulator. As such the Commission has no observations to make on this chapter.
CHAPTER 32: DEVELOPMENT OF THE FIRE FROM IGNITION TO FLAMING COMBUSTION
1. The matters of causation raised in this chapter fall outwith the Commission's statutory remit, and are not largely matters upon which the Commission wishes to make any comment. It does not demur from the Crown's proposition that the stopping of the clock in Room 12 at 0440 affords further verification of the time at which a high temperature fire had entered that room.
CHAPTER 33: BRE TEST 1 - A REASONABLE REPRESENTATION OF THE FIRE AT ROSEPARK
1. The matters of causation raised in this chapter fall outwith the Commission's statutory remit, and are not matters upon which the Commission wishes to make any comment. It does not however dispute the Crown's conclusions.
CHAPTER 34: DEVELOPMENT OF THE FIRE - THE ROLE OF AEROSOLS
1. The Care Commission agrees with the Crown summary in respect of the use of aerosols, and does not challenge the scientific evidence summarised under this heading, nor the assertion that the response of an aerosol to heat or flame can be unpredictable, which accords with commonly given safety advice.
2. It further agrees that evidence indicates that exploding aerosols played a part in the development of the fire at Rosepark. As the storage of aerosols may have been a matter in which the policies of the Health Board and Care Commission differed, it intends to revert to the issue of storage in a later chapter.
CHAPTER 35: THE DEVELOPMENT OF FIRE - THE ROLE OF FURNITURE
1. The Care Commission agrees that evidence clearly discloses that there were a number of items of furniture within Corridor 4 at the time of the fire as stated. The test results fall outwith the knowledge and remit of the care regulator, and the Commission has no further observations to make.
CHAPTER 36: DEVELOPMENT OF THE FIRE - THE EVIDENCE OF MRS. BURNS
1. The Care Commission does not dispute any of the matters referred to in this chapter. As the matters are outwith its direct knowledge it has no further comment to make.
CHAPTER 37: DEVELOPMENT OF THE FIRE - CORRIDOR 3
1. Evidence clearly discloses considerable smoke ingress into Corridor 3. It further discloses that the two residents in that corridor who slept with their doors open both died in hospital.
2. The physical effects of the fire upon the corridor firedoor, and the implications thereof, in particular in respect of pressure effects, raise issues beyond the knowledge and remit of the Commission as care regulator. It does not propose to address the scientific evidence adduced, and has no further observations to make on this point.
3. In respect of fire passing through the ducting which was not supplied with fire dampers as required, and of the apparent failure of the fan, the Crown submissions and those of North Lanarkshire Council raise issues of construction that fall outwith the Commission's remit, and it has no further comment.
CHAPTER 38: WHEN DID IGNITION OCCUR?
1. It seems certain that flaming ignition occurred shortly before the fire alarm sounded at 0428. The precise time of ignition is not a matter upon which the Commission feels it appropriate to comment. Beyond that observation the Commission has no observation to make on this chapter.
CHAPTER 39: SMOKE AND TOXIC FIRE GASES
1. The Care Commission agrees with the Crown's summation of the typical products of combustion. With respect to their submissions in respect of the conversion of carbon monoxide to carboxyhaemoglobin, and the effects thereof, the Commission agrees with the Crown's summary of the evidence, and has no further comments to make.
CHAPTER 40: EFFECT OF SMOKE AND TOXIC GASES ON THE RESIDENTS OF CORRIDORS 3 AND 4
1. The Care Commission accepts the Crown evidence that the residents of Corridors 3 and 4 sustained significant exposure to carbon monoxide, as determined by either post-mortem results or measurements taken on arrival at hospital.
2. In respect of the ten residents who died at the locus, the Commission takes no issue with the post mortem findings as summarised by the Crown. As to the length of time taken before incapacitation and death in respect of those residents in Corridor 4 whose doors were open, the Commission sees no reason to dispute Professor Purser's conclusions.
3. In respect of the residents admitted to hospital suffering the effects of smoke inhalation, the Commission expresses no view on the back-calculations referred to, which fall outside the knowledge or expertise of the Commission.
4. In considering the effect of smoke and toxic gases upon Mrs Burns in Room 10 and Mrs McLeod in Room 11, where bedroom doors were closed at the time of the fire, the Commission notes the conclusions reached by Professor Purser in respect of the time taken for smoke and toxic gases to penetrate to critical levels, and the implications that may arise from these. It further accepts that there is evidence of fire damage to Mrs McLeod's door that may have hastened the ingress of smoke. As the specific scientific basis for the calculations is outwith the knowledge and expertise of the Commission, it does not propose to comment further on this chapter.
CHAPTER 41: WHERE AND WHEN EACH DEATH TOOK PLACE
1. The Care Commission agrees with the fourteen proposed determinations listed by the Crown. It agrees that the times and places of death are accurately recorded.
2. So far as the proposed table in Paragraph 7 is concerned, based upon Professor Purser's calculations, the Care Commission has no basis to challenge these figures or propose an alternative.
CHAPTER 42: THE CAUSE OR CAUSES OF DEATH OF EACH DECEASED
1. The Care Commission does not take issue with any of the Crown's proposed findings, all of which accord with its recollection of the evidence.
2. Evidence discloses that the ten residents who died within Rosepark all occupied bedrooms in Corridor 4 which had doors open to some extent on the morning of the fire. The Commission accepts the evidence that in each of these rooms exposure to smoke and toxic fire gases would have rapidly proved fatal.
3. In considering the four residents who were taken to hospital but succumbed there, the Commission agrees that each of them had been exposed to smoke and toxic fire gases. It is the Commission's understanding of medical evidence that in each case the resident's prognosis for survival at the time they were removed from the care home was poor. Each of them suffered from recognised sequelae of the inhalation of smoke and fire gases, and died on 1st or 2nd February 2004, as a result of sequelae of the inhalation of smoke and fire gases.
4. So far as the proposed finding specific to each individual deceased is concerned, in each case the Commission agrees with the Crown's proposed findings and has nothing to add.
CHAPTER 37: THE CAUSE OF THE FIRE
1. As the matters raised in this chapter relate specifically to the physical cause or causes of the fire, which are matters outwith the remit of the Care Commission as regulator, in that electrical installation and wiring are not matters either governed by the 2002 Regulations or the National Care Standards, it does not propose to analyse specific points in this chapter. The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002[4832] do not impose any obligation to inspect or examine electrical installations, while Standard 5 of the National Care Standards[4833] provides that the resident can be "assured that the home has policies and procedures which cover all legal requirements, including... health and safety".
2. Upon the assumption that the fire was not caused by deliberate or negligent human activity, as proposed by the Crown in paragraph 15, then it appears that the sole remaining cause of the fire arose from the presence of an electrical source in Cupboard A2. The Commission is aware that not all parties to the Inquiry concur in stating that the cause of the fire was electrical, but as this falls outwith the Commission's remit, it expresses no view on the physical cause of the fire.
3. As to the various possible mechanisms within the electrical installation that may have triggered the fire, given the comments made at paragraph 1 above, the Commission elects to make no comment on matters of causation.
4. For the purposes of Section 6 (1) (b), the Care Commission does not elect to make any proposed determination in respect of the cause of the accident.
CHAPTER 43: INSULATION AT THE CABLE V KNOCKOUT
1. The matters raised in this chapter relate solely to matters relating to electrical installation. As compliance or otherwise with industry standards and/or the relevant IEE Wiring Regulations are not matters falling under the control of the Care Commission, it makes no comment on the Crown submissions here, electing to leave such submissions to those with knowledge of, expertise in and a role in relation to electrical matters.
CHAPTER 44 (2): INSPECTION AND TESTING OF THE ELECTRICAL INSTALLATION
1. On the assumption that the court accepts that the fire was caused by the sequence of events proposed by the Crown, then it would appear to follow that any defects in installation or modification would be likely to have been discovered by professional inspection and testing. The Commission would not propose to challenge the Crown's proposed determination (save by observing that the word "probably" should be inserted in Paragraph 2 before the words "have been" in lines 3 and 5). However, as the terms of the IEE Wiring Regulations and the Electricity at Work Regulations 1989 relate to matters outwith the control of the Commission, and as such are not to be presumed to be within the knowledge of the Commission, it does not propose any determination here.
CHAPTER 44 (3A): CUPBOARD DOORS
SECURING CUPBOARD DOORS
1. Once again proceeding upon the assumption that the Crown's hypothesis that the doors of cupboard A2 were not locked, and that one door was in fact left ajar, rather than being securely shut, has been found proven on balance of probabilities, the Care Commission agrees with the Crown's proposed determination.
2. As the cupboard was located on a potential escape route and contained flammable items, had its contents been known to the Commission, and had inspectors become aware that it was routinely left open, it is likely, notwithstanding its limited level of expertise in fire matters, that the Commission would have recommended that it be closed securely at all times when not in use.
3. This would have restricted the speed of development of any fire. This was clearly an important consideration in a corridor that housed up to fourteen persons, most of whom had mobility difficulties.
FIRE-RESISTING DOORS ON THE CUPBOARD
4. The Commission notes the Crown's proposition here, and observes that policy in respect of the provision of fire-resisting doors appears to have developed since the construction of Rosepark in 1992. It observes that the advice referred to in "Fire Safety: An Employer's Guide"[4834] was first published in 1999. It is not clear whether any advice in this regard was given to the owners. If any such advice was given, this is not known to the Care Commission.
5. In respect of current practice, the Commission agrees that doors separating flammable materials from escape routes should, if possible, provide adequate fire resistance.
PROTECTION OF MEANS OF ESCAPE
6. The Care Commission does not take issue with the Crown summary in paragraphs 1-4 under this heading. In respect of the reasonable precautions proposed in paragraph 5, which might have avoided some or all of the deaths, its comments are:-
5.1 - Secure closure of the doors would have been appropriate at the time of the fire, and the Care Commission understands that in present practice such doors should be fire-resistant
5.2 - Again, developments in technology since the construction of Rosepark have made this technology widely available, and door closers should now be the norm in care homes
5.3 - This proposal appears appropriate
5.4 - The Care Commission does not require or recommend storage of aerosols in cupboards, and agrees that aerosols should not be stored close to other combustible materials
5.5 - The Commission notes that the re-designed Rosepark Care home has subdivided this corridor into two sub-compartments
5.6 - While this is a construction matter, as fire dampers were required at the time plans were approved, these should have been in place.
7. Any implications arising from the foregoing in respect of current Commission practice, or the respective roles of the Commission and the Fire service, will be addressed in more detail in later chapters.
CHAPTER 44 (3) (B): BEDROOM DOORS
1. In addressing the matters covered in this chapter, the Care Commission is aware that there may inevitably be situations in which conflict arises between the wishes of the resident whose home it is, so far as they may be conveyed, any medical necessity that may arise, and the requirements of fire safety. While it recognises that the wishes of a resident, no matter how cogently or forcefully expressed, cannot override the need to preserve the fire safety integrity of the whole building, it is necessary to strike a balance that does not distress the resident unnecessarily.
CHAPTER 44 (3) (C): FITTING SMOKE SEALS
1. As a general proposition, the Care Commission does not dispute that the fitting of smoke seals would have provided additional protection to doors. It follows that this would therefore have had an effect upon the time taken for ingress of smoke and toxic gases into Rooms 10 and 11, which is likely have had an effect upon the point at which such ingress reached critical levels, and therefore might have prevented the deaths of Robina Burns and Isabella McLeod.
2. The Commission has no direct knowledge of when intumescent smoke seals became widely available, their approximate cost or how easily they may be fitted. It observes that the guidance in HTM 84 was not available to the public in 2004; thus, neither the Commission nor the proprietors of Rosepark can be presumed to be aware of this guidance.
CHAPTER 44 (3) (D): STORAGE OF COMBUSTIBLE MATERIALS
1. The Care Commission's view is that it was not necessary for the management of Rosepark to store aerosols within Cupboard A2. It has no policy requiring secure storage of aerosols[4835] and allows residents to retain aerosols for personal use within their own rooms, subject to an appropriate level of supervision, and thus it agrees with the proposition made by Mr Shipp. It agrees that, to the extent that additional aerosols may require to be stored elsewhere than in residents' rooms, such storage should not be on a designated escape route.
2. So far as the consequences of aerosols being stored in the cupboard is concerned, the Commission accepts the Crown evidence that exploding aerosol canisters appear to have played a significant role in the development of the fire, subject of course to the prior observations about the non-availability of HTM 84 and the two caveats listed by the Crown in paragraph 14.2.
3. It therefore agrees with the Crown's proposed determination and has nothing to add.
CHAPTER 44 (3) (E): SUBDIVISION OF THE CORRIDORS
1. From the evidence led at the Inquiry, it is clear that a maximum of fourteen persons with mobility difficulties and/or dementia sleeping in Corridor 4 was too many to allow for swift or effective evacuation, and that evacuation would present significant challenges.
2. As these are more properly matters to be analysed by specialists in other fields, and given the particular areas upon which it concentrated in the period immediately preceding the fire, the Commission expresses no view on the appropriateness of the original design, or on any defects in the level of risk assessment in terms of risk to service users. It observes that since the fire the subdivision of Corridor 4 has been altered to comprise seven bedrooms on each side of an additional fire door[4836]. It observes once more that Commission staff were unaware of HTM 84 and SHTM 84, which were not generally available outwith the Health Service. The April 2003 version of the latter document specified its use by competent persons. This was intended to be restricted to a limited number of specified persons of "sufficient technical training and experience"[4837]. It was not designed to be used by proprietors of care homes, providers of care services or inspectors.
3. It may well be the case that, given the seat of the fire and assuming that corridor doors worked as intended, that those residents in Corridor 4B would have had a substantially greater chance of survival.
CHAPTER 44 (3) (F): FIRE DAMPERS
1. Given that the matters raised in this chapter refer to the construction of the home, a matter which (a) predated by ten years the inception of the Commission, and (b) refers to matters of construction and design that fall outwith the knowledge or remit of the Commission, it restricts its observations solely to agreeing that, as building regulations and the approved plans required the installation of fire dampers, these should have been installed. The implications of the effect the presence of dampers might have had on the actions of staff or firefighters are a matter for comment by others. It has no further observations on the submissions of the Crown or North Lanarkshire Council. In particular, the Commission is not in a position to express a concluded view on whether the deaths of Margaret Gow and Isabella MacLachlan would probably have been avoided by the installation of fire dampers.
CHAPTER 44 (4): PROMPT ACTION BY STAFF
1. As general propositions, the Care Commission does not take issue with the Crown's summary or recommendations here. Staff training on emergency actions and upon the use and design of any new fire alarm panel are clearly important in every care home or similar premises. It has no further observations to make.
CHAPTER 44 (4A): INFORMATION AT THE ALARM PANEL
1. The panel in use at Rosepark on the morning of the fire was installed in January 2004 had not been seen by Care Commission inspectors. Evidence discloses that the identification of the divisions between zones was not clear, and that staff did not correctly identify the location of the fire. Had the correct location been identified and staff sent there immediately, the outcome would probably have been different in several ways. Either or both of evacuation of residents and fire-fighting with extinguishers could have been undertaken, and the Fire Brigade would have been summoned earlier with information as to the existence and location of the fire.
2. While the Care Commission expresses no view as to whether a diagrammatic representation of the building was necessary it the time, it was preferable that there be such a plan at or near the alarm panel. CCTV evidence and the evidence of the night staff discloses that there was confusion at the panel. This undoubtedly hindered the swift identification of the existence and source of the fire.
3. The Care Commission therefore agrees with the Crown's proposed recommendation here.
CHAPTER 44 (4) (B): TRAINING AND FIRE DRILLS
9. As a general proposition, the Care Commission agrees that in the event of a fire, prompt and effective action may make all the difference between a safe outcome and a disaster, and that Ii is imperative that the staff of a care home are equipped to take prompt and effective action in an emergency.
10. It agrees that fire safety training should be provided by an individual with knowledge and experience in the field, that it should be provided to all staff, and that refresher training is appropriate. The duties of the nurse in charge should be specified and clearly understood. It also agrees that staff should be trained in the use of fire extinguishers.
11. So far as confirmation of competence is concerned, this can only be assessed by an appropriately experienced or qualified training provider. The content of drills must be specific to the needs of the home and its residents.
12. The Care Commission has no observations on the terms of the various guides summarised here, all of which clearly contain relevant practical advice.
Management's expectations and the actual arrangements at Rosepark
13. The Commission cannot comment upon Mr. Thomas Balmer's understanding of the procedures carried out at Rosepark. Nor was it as at January 2004 possessed of the necessary expertise to carry out a full analysis of the adequacy or otherwise of the fire safety procedures within a care home. As stated previously, the extent to which the Health Board had previously had responsibility for carrying out qualitative analysis of safety procedures appears not to have been appreciated in the period preceding the inception of the Commission, fire safety had not been identified as a priority, and liaison with the various Scottish Fire Brigades was not yet concluded. The fire safety matters specified in the 2002 Regulations related only to record keeping. The Commission does not dispute the Crown's factual summary set out in paragraph 3.
14. Evidence led at the Inquiry indicates that the staff on duty on the night of the fire had received limited training. None had taken part in a fire drill, or undertaken training in the use of extinguishers. The nurse in charge's understanding of her role was not in accordance with that of Matron.
15. The specific effect of these defects upon the events of the morning of 31st January is more properly a matter for the submissions of others. The implications that may arise from these defects not being identified in the course of inspections by the Commission, and submissions in respect of the present system and the future will be addressed in later chapters.
CHAPTER 44 (4) (C): INSTRUCTION FOR ISOBEL QUEEN IN RELATION TO THE NEW FIRE ALARM PANEL
1. The Care Commission understands that the nurse in charge Ms McQueen was not given any training in the use of the new alarm panel. It further understands that, on the morning of 31st January 2004 she was unable to identify the location of the activated alarm point. It therefore has no adverse comment upon the Crown submissions in this chapter.
CHAPTER 44 (5): EARLY INVOLVEMENT OF THE FIRE BRIGADE
1. In a residential care home, where the residents will inevitably almost all be elderly people, and where most will have a degree of physical and/or mental impairment, the Care Commission concurs that it is essential that the home's fire procedure should require a call to the Fire Brigade immediately the fire alarm sounds. This appeared to be the procedure specified in two fire notices on display at the time the Care Commission inspected Rosepark[4838], although this was not in fact the procedure operated at the home. The Care Commission agrees that an immediate call to the emergency services was necessary. In addition, it agrees that the provision of a detailed notice in Matron's office specifying the information to be provided to the emergency services would have been a reasonable precaution.
2. In respect of the provision of an automated call system prior to January 2004, and the expense of installation, these matter fall outwith the knowledge of the Commission, which therefore expresses no view as to whether such a system should have been in place at the time. It agrees that in current practice such a system should be installed in any residential care home.
3. The Commission agrees that, given the vulnerability of the residents, the care home should have been designated as a high level of risk. While it is accepted that prior to Rosepark the safety record of residential care homes was extremely good, and there were very few reported instances of even minor fires, the majority of residents at any time were likely to have mobility difficulties and/or a degree of dementia. It notes that in current practice the level of attendance has been increased.
4. The Commission does not make any observations upon matters of operational firefighting, including any issues arising from fire engines attending at New Edinburgh Road, and makes no comment upon the operational issues raised by Strathclyde Fire and Rescue. While it may well be the case that earlier mobilisation of fire engines and an earlier and better structured commencement of the search might have resulted in the persons named being rescued earlier, analysis of this falls outwith the scope of the Commission's functions as care regulator, and it leaves it to others to undertake more detailed analysis.
5. In respect of Professor Kinsella and Professor Purser's calculations and conclusions, the Commission restricts its comments to observing that evidence shows that the earlier a person is rescued from a smoke-filled environment, the greater their chances of survival. The particular calculations in respect of individual residents fall outwith the Commission's remit as care regulator, and it expresses no specific views thereon.
CHAPTER 44 (6): A SUITABLE AND SUFFICIENT RISK ASSESSMENT
1. The Care Commission agrees that Rosepark required to have a suitable and sufficient fire risk assessment. It notes Mr Reid's acceptance in evidence that the assessment he carried out which formed the basis for Production 216 was not a suitable and sufficient fire risk assessment.
2. The defects enumerated by the Crown are matters which are likely to have been obvious to a trained fire safety professional. The assessment of the adequacy or otherwise of the risk assessment was not, however, a matter that fell specifically within the statutory duties of the Care Commission in terms of the 2002 Regulations or the National Care Standards, The Commission was neither under a duty, nor presumed to have the expertise, to carry out detailed analysis of Production 216. It therefore has no further observations to make on the contents of the risk assessment itself.
3. It does not, however, demur from the Crown's two proposed determinations in this chapter
CHAPTER 44 (7): EARLY AND SUFFICIENT RESOURCING OF THE INCIDENT BY THE FIRE BRIGADE
1. The matters addressed in this chapter are all ones relating to operational firefighting decisions. These being matters outwith the knowledge of the Commission and falling far outside its remit as care regulator, it leaves it to others, in particular the Fire and Rescue Service, to offer analysis. It notes, however, the list of contributory factors to the outcome proposed by Strathclyde Fire and Rescue, and agrees that all these factors can reasonably be deduced from the evidence led as being amongst those that materially contributed to the catastrophic outcome of the events of 31st January 2004.
CHAPTER 45 (1): ELECTRICAL INSPECTION
1. As matters relating to the maintenance and inspection of electrical installations fall outwith both the National Care Standards and the 2002 Regulations, save for the exception that the home is obliged to maintain a record of "any maintenance of equipment which is used in the provision of the service"[4839]. The quality of any such testing, and its compliance or non-compliance with the relevant IEE Wiring Regulations in force at the time is not a matter falling within the knowledge or remit of the Care Commission.
CHAPTER 45 (2): TRAINING AND DRILLS
1. Evidence led at the Inquiry clearly enables the court to conclude that, as developed within Rosepark between 1992 and January 2004, the system of fire training was inadequate. The Commission does not take issue with the Crown's proposed determination under this heading and has nothing to add.
CHAPTER 45 (3): MANAGEMENT OF FIRE SAFETY
1. The duties and functions of the Care Commission are separate from any duties imposed or advice given by the Health and Safety Executive. The Commission is not presumed to be familiar with key elements of successful health and safety management as set out in the Approved Code of Practice and Guidance on the Management of Health and Safety at Work Regulations[4840] and outlined in the HSE publication, Successful Health and Safety Management referred to.
2. The Commission, however, agrees that it is necessary that management take a proactive approach to matters of fire safety. It further agrees that any such training must be undertaken to a specified standard. It agrees that evidence discloses that fire safety standards at Rosepark were defective.
3. To the extent that fire safety was a health and safety issue, its management falls outwith the remit of the Care Commission, which had no locus to investigate the adequacy or otherwise of written health and safety policies. The Commission therefore elects to express no specific view on the adequacy of health and safety management and procedures within Rosepark. In particular, such role as Mr Clark may have had falls outwith the knowledge and remit of the Commission.
4. In respect of the general adequacy or otherwise of monitoring fire safety procedures the Care Commission observes only that, as there was compliance by the home with its statutory obligations in respect of record keeping, in the period prior to the appointment of a specialist Fire Safety Officer, it was not in a position to identify or act upon any of the defects listed by the Crown. While it is correct that, as stated at Paragraph 56.2, the Care Commission invited a review of the emergency arrangements in the context of the Fire Brigade Union strike, if such review was to be undertaken it would be done by the service provider. To the extent that this was, as stated, a missed opportunity, it is not one that would be likely to have become known to the Commission.
5. While noting the Crown's comments on the training video at paragraph 54.1, the issues arising therefrom in respect of changing the home's policy are internal management ones, upon which the Commission elects not to make submissions. So far as door closures are concerned, the tension between the welfare of residents and the fire safety implications as at 2002-2004 will be addressed in a later chapter. The Commission has no knowledge of any advice given by Mr. McNeilly based upon SHTM 84 and, for reasons stated previously, has no comment to make.
6. There is no doubt, based upon the evidence that, had there been an adequate system of fire safety management at Rosepark, the outcome on 31 January 2004 would have been quite different. Numerous issues combined which cumulatively resulted in the events of that morning taking the catastrophic course that they did. These are identified in detail in Crown submissions and it is unnecessary to analyse them in further detail here.
CHAPTER 45 (4): MANAGEMENT OF THE CONSTRUCTION PROCESS
1. Given that the building was constructed in1992, and that the issues of management of construction are outwith the knowledge or remit of the Commission, it has no observations to make in this chapter.
CHAPTER 45 (5): THE INTERACTION BETWEEN ROSEPARK AND LANARKSHIRE HEALTH BOARD
1. The terms of the previous legislation and regulations in force between the construction of Rosepark and 31st March 2002 are agreed. The manner in which the Health Board inspectors undertook their functions, save insofar as the last three written reports were sent to the Care Commission, is not known to the Commission, which leaves it to others to make submissions on the adequacy or otherwise of the inspections carried out. Any instructions or guidance given by the regulator to inspectors prior to 2002 is not a matter within the knowledge of the Commission. It has no comment on the matters raised in submissions on behalf of Lanarkshire Health Board that relate specifically to this chapter.
2. So far as the matters identified by the Crown in paragraph 10 are concerned, the Commission notes that none of these three recommendations had been made in writing to the management of Rosepark. Had such recommendations existed as at 1st April 2002 and had these been in accordance with Care Commission policy and the 2002 Regulations, compliance with them would have been followed up by the Commission. The implications of this will be addressed in the next Chapter.
CHAPTER 46 (1): ENFORCEMENT OF THE FIRE PRECAUTIONS LEGISLATION
1. The issues arising from the operation of the Fire Precautions (Workplace) Regulations 1997 and the enforcement obligations created therein are matters that fall outwith the knowledge and remit of the Commission. It therefore makes no submissions on whether, and to what extent, these regulations created obligations upon Strathclyde Fire and Rescue Service.
2. Likewise, as the correspondence between Scottish Ministers and the various Fire Authorities both predates the inception of the Commission and is outwith its knowledge, it has no observations to make on its effect upon procedures in place prior to 2002.
3. It is clear that, in the period after the inception of the Commission, and before both the Rosepark fire and the Fire (Scotland) Act 2005, practices had not been uniform across Scotland. The practices referred to by Alan Sheach in paragraphs 89-97 of the Crown submissions, as operated in Fife, were not replicated in Strathclyde, as is clear from Liz Norton's comments reported at paragraph 72. It was Mr. Sheach's belief that that regime was not undertaken in terms of the 1997 Regulations, but rather it was derived from an arrangement that subsisted between the local Health Board and the Fife Fire Service. Indeed, the tenor of Mr. Sheach's evidence was that the inspection regime had been in place long before the 1997 Regulations were passed. Mr. Sheach continued to work for Fife Fire and Rescue Service until 2002.
4. There remained of course, the possibility that the fire service might be invited to attend specified premises either on the request of the owners or managers, or when requested to do so by a regulator. Evidence discloses that there were no set arrangements in place within Strathclyde prior to, or immediately following, the inception of the Care Commission.
5. Evidence confirms that Nursing Homes were not designated under the Fire Precautions Act 1971 as requiring a Fire Certificate. The practical effect of not requiring a certificate was that they were not subject to a statutory regime of inspection by Fire and Rescue Services[4841]. This position did not change following the coming into force of the Regulation of Care (Scotland) Act 2001 and the regulations made thereunder. The Commission has no further observations to make.
6. With regard to the submissions made in this chapter by Scottish Ministers, the Commission agrees that it is not the function of this Inquiry to determine how and in what manner Fire and Rescue Services approached their functions under the 1997 Regulations. Evidence establishes that inspection pursuant to Regulation 10 was not carried out at Rosepark, and it thus cannot be said with certainty what the results of any such inspection would have been. This does not, of course, mean that there was a defective system of working.
CHAPTER 46(2) : Statutory Responsibility for fire safety: Care Commission and Strathclyde Fire and Rescue understanding of their respective roles
In respect of the Crown's proposed determinations under Section 6 (1) (e) the Care Commission proposes that the following matters were relevant to the circumstances of the fire at Rosepark:
1. Regulation and enforcement of fire safety in care homes at the time of the fire at Rosepark was not the sole responsibility of one body.
2. The Nursing Homes (Registration) (Scotland) Act 1938 had been repealed and the Nursing Homes (Registration) (Scotland) Regulations 1990 revoked in favour of a less prescriptive regime of fire safety regulation, administered under the auspices of the Care Commission. The Care Commission's regime of inspection, whose principal focus was the needs of service users, although regular, was not designed in a manner that would identify all significant breaches of fire safety.
3. Enforcement of the Fire Precautions (Workplace) Regulations 1997 was entirely dependent on a risk based approach which determined the premises that would attract inspection. At least in the area of operation of Strathclyde Fire and Rescue Service, care homes were not being inspected under the 1997 Regulations at all at the time of the fire.
4. At the time of the Rosepark fire, the inspectors of the organisation charged with regulating care homes and reporting upon compliance with certain record keeping in respect of fire safety did not have the expertise to carry out more detailed analysis of safety procedures at a level which would have ensured the discovery of non-compliance with good fire safety practice. The organisation which did have that expertise, the Fire and Rescue Service, was not inspecting care homes routinely. The Care Commission's knowledge of the role of Fire and Rescue Services in relation to fire precautions in care homes, and vice versa, was less clear than would have been desirable in a regulator.
5. One product of this lack of clarity was a situation at Rosepark in which the inadequacies of Mr. Reid's risk assessment, and the fact that arrangements for dealing with a fire alarm sounding at night were not as stated in the home's fire safety policies and training video, were unlikely to have been identified at the time when the fire occurred.
Since the fire at Rosepark
6. The position following the enactment of part III of the Fire (Scotland) Act 2005 involves a greater level of communication between the Care Commission and the Fire and Rescue Services. This is reflected in the Fire Safety Checklist that applicants for registration require to complete and submit for consideration by Fire and Rescue Services[4842]. It is anticipated that this greater level of communication will not only continue but be placed on a more formal footing following the inception in April 2011 of SCSWIS.
7. Part III of the Fire (Scotland) Act 2005 does not prescribe the level of frequency with which Care Homes should be inspected by Fire and Rescue Services. The approach remains one based on assessment of risk. Strathclyde FRS currently visit all care homes once per year[4843]. While the practice of other Fire and Rescue Authorities was not the subject of examination during the Inquiry, the experience of the fire at Rosepark illustrates all too clearly the risks associated with fire within the care home environment. No doubt Fire and Rescue Services will wish to ensure that those risks have been fed into the risk profiling exercise contemplated by the Circular "Strategic Enforcement Guidance for Fire and Rescue Authorities"[4844].
8. Regulation and enforcement of fire safety in care homes at the time of the fire at Rosepark was not the sole responsibility of one body.
9. The Nursing Homes (Registration) (Scotland) Act 1938 had been repealed and the Nursing Homes (Registration) (Scotland) Regulations 1990 revoked in favour of a less prescriptive regime of fire safety regulation, administered under the auspices of the Care Commission. The Care Commission's regime of inspection, whose principal focus was the needs of service users, although regular, was not designed in a manner that would identify all significant breaches of fire safety.
10. Enforcement of the Fire Precautions (Workplace) Regulations 1997 was entirely dependent on a risk based approach which determined the premises that would attract inspection. At least in the area of operation of Strathclyde Fire and Rescue Service, care homes were not being inspected under the 1997 Regulations at all at the time of the fire.
11. At the time of the Rosepark fire, the inspectors of the organisation charged with regulating care homes and reporting upon compliance with certain record keeping in respect of fire safety did not have the expertise to carry out more detailed analysis of these procedures at a level which would have ensured the discovery of non-compliance with good fire safety practice. The organisation which did have that expertise, the Fire and Rescue Service, was not inspecting care homes routinely. The Care Commission's knowledge of the role of Fire and Rescue Services in relation to fire precautions in care homes, and vice versa, was less clear than would have been desirable in either regulator.
12. One product of this lack of clarity was a situation at Rosepark in which the inadequacies of Mr. Reid's risk assessment, and the fact that arrangements for dealing with a fire alarm sounding at night were not as stated in the home's fire safety policies and training video, were unlikely to have been identified at the time when the fire occurred.
Since the fire at Rosepark
13. The position following the enactment of part III of the Fire (Scotland) Act 2005 involves a greater level of communication between the Care Commission and the Fire and Rescue Services. This is reflected in the Fire Safety Checklist that applicants for registration require to complete and submit for consideration by Fire and Rescue Services[4845]. It is anticipated that this greater level of communication will not only continue but be placed on a more formal footing following the inception in April 2011 of SCSWIS.
14. Part III of the Fire (Scotland) Act 2005 does not prescribe the level of frequency with which Care Homes should be inspected by Fire and Rescue Services. The approach remains one based on assessment of risk. Strathclyde FRS currently visit all care homes once per year[4846]. While the practice of other Fire and Rescue Authorities was not the subject of examination during the Inquiry, the experience of the fire at Rosepark illustrates all too clearly the risks associated with fire within the care home environment. No doubt Fire and Rescue Services will wish to ensure that those risks have been fed into the risk profiling exercise contemplated by the Circular "Strategic Enforcement Guidance for Fire and Rescue Authorities"[4847].
15. In view of the imminent change in the statutory arrangements for care home regulation stated in paragraph 6 above, early attention to placing the relationship between Social Care and Social Work Improvement Scotland ("SCSWIS") and the Fire and Rescue Authorities on a formal footing, and clarifying how they are to operate together in the care service sphere, particularly as regards fire safety in both new and existing care homes, is now essential.
16. Similarly, there should be clarity, as between SCSWIS and the Health and Safety Executive, as to how the duty of inspecting electrical installations in care homes be regulated. Those charged with inspecting such installations should have instruction as to the nature of the documentation which they should expect to see, and should be possessed of the necessary expertise to carry out such inspections.
1. The Care Commission assumed responsibility for, inter alia, the regulation and inspection of care homes for the elderly, with effect from 1st April 2002. It was a creation of statute, whose powers and duties were set out in the legislation referred to. In addition, the Commission's approach was guided by the National Care Standards. The approach of the Care Commission was specifically designed to be centred upon the user, and to move away from a previous regime perceived as too focussed on compliance with specific regulations, and into one that was more aspirational.
2. It is now clear that it was the intention of the Scottish Government not to effect any change in the level of scrutiny of the fire precautions within care homes, compared to that in place under the previous regime. It is also now clear that that was not, in fact, what happened. It is unnecessary for this Inquiry to examine why that be the case.
3. The result of this was that the level of inspection of fire safety matters undertaken by the Commission in the period prior to the Rosepark fire was less stringent than that mandated by the previous Health Board Regulations. In particular, there was no provision in the 2002 Regulations directing the Care Commission to consider the sufficiency and suitability of the procedure to be followed in the event of a fire or other emergency or the sufficiency and suitability of the recorded fire drills. Fire safety was addressed in Regulation 19 (3) of the 2002 Regulations. It was a regulation concerned only with the keeping of records. Until it was amended, following the coming into force of the Fire (Scotland) Act 2005, with effect from 1st October 2006[4848], regulation 19 (3) required a care provider to keep a record of the procedure which was to be followed in the event of a fire or other emergency, a record of all fire drills and alarm tests which have been conducted, and a record of any maintenance of equipment which is used in the provision of the care service[4849].
4. The result of this was that, as at 2003, inspectors were not trained in the assessment of fire safety, and thus did not carry out detailed scrutiny of the fire safety policies and procedures of care homes. Unless specific concerns in respect of fire safety were either clear and obvious (for example, the blocking of fire exits or the absence of fire extinguishers) or were drawn to the attention of inspectors, the regime was not designed to uncover defects in fire safety procedures. The difference between the previous Health Board regime and the statutory duties of the Care Commission did not emerge until after the Rosepark fire.
5. The Care Commission does not dispute the factual accuracy of the matters adduced by the Crown in paragraphs 10-14. With respect to door closers, it observes that there was, in respect of a home that did not possess automatic door closers linked to the fire alarm system, a tension between the potential interests of the resident, whose dwelling place the home was, and the fire safety interests of the home itself and other residents. It further observes that, in the reports forwarded to the Commission by Lanarkshire Health Board, there had been no reported compulsion upon the home staff to close residents' doors at night. Where a resident expressed a wish that their door be left open at night, and where enforcing closure of doors might cause distress, given the emphasis of the National Care Standards and the lack of emphasis upon fire safety in the period prior to January 2004, it is unlikely that inspectors would have viewed this as a concern.
6. The Care Commission does not agree with the Crown's proposition in paragraph 15. While evidence discloses that both the quality and quantity of fire safety training was below that which would be considered appropriate for a building the size of Rosepark and with a highly dependent population, it is nonetheless the case that the home did prominently display notices detailing fire safety procedures, did record alarm tests, did record fire drills, and did record fire induction in staff records. It was therefore open to an inspector who had seen these items to make the finding they did.
7. In respect of the matters raised in paragraph 16, it is now clear that Rosepark, while it may have listed appropriate policies and procedures, did not operate these procedures, and further that not all staff were trained in evacuation procedures.
8. Had the Care Commission been given statutory powers analogous to those of the Health Boards under the 1990 Regulations, it is likely that the inspection regime would have given greater priority to fire safety, and that a Fire Safety Officer might have been appointed to the Commission shortly after its inception. The Care Commission appointed Alan Sheach as a Fire Safety Officer in 2005, and the post remained until after the Fire (Scotland) Act 2005 came into force and responsibility for fire safety was transferred to the Fire Service on 1st October 2006. Mr. Sheach came from Fife Fire and Rescue Service, who offered training in the form of fire safety lectures and staff training, especially in new nursing homes. If there was any particular focus, it tended to be on the night staff. Sometimes they would arrange exercises during the day for the night staff to attend[4850]. The purpose was to emphasise just how difficult it is physically to move people to a place of safety. Fife Fire and Rescue Service attended care homes routinely on a "goodwill" basis. Mr. Sheach was able to offer training and guidance to Care Commission inspectors. Had such training been in place, it is likely that inspectors would have recommended (a) that the Fire Brigade be called immediately the fire alarm sounded, (b) that regular refresher training be undertaken on matters of fire safety, and (c) that fire safety training, including drills, must be undertaken by all staff. In addition, more detailed advice about door closers and the safety aspects of leaving doors open at night would have been available in advance of the fire.
9. The Firemaster of Strathclyde at the time was Jeffrey Ord. He took part in liaison meetings with the Chief Executive of the Care Commission, and felt that he understood that the Commission had a responsibility for fire safety which included compliance[4851]. It was not until after the fire at Rosepark that the Care Commission became aware that attendance by the Fire Service at care homes was not specifically in respect of fire safety[4852]. It is now clear that, in the period between 1st April 2002 and the Rosepark fire, the true legal position in respect of fire safety was not known to Ministers, the Care Commission, or the Fire Service.
10. With respect to the proposition by Lanarkshire Health Board (at Paragraph 2) that the creation of a new statutory scheme operated as a novus actus interveniens, it is of course accepted that, with effect from 1st April 2002, the Care Commission assumed responsibility for regulation of care services in Scotland, including residential care homes such as Rosepark, in terms of a new statutory regime. However, as demonstrated by the evidence of Elizabeth Hunter from the Regulation of Care Team, the White Paper and other evidence summarized in Chapter 22C, the creation of the Care Commission was not designed to take place in a vacuum, setting up a wholly new statutory body from scratch, but was instead specifically designed, in respect of care homes previously operated by Health Boards, to take over and run functions previously undertaken by them. It was understood (erroneously as evidence disclosed) that there would be no change in the fire safety inspection requirements.
11. In respect of Rosepark itself, in accordance with nationwide practice, copies of recent Health Board inspection reports were made available to the Commission, which relied to an extent upon the contents of them in determining which care homes required inspection as a matter of priority and which did not. While accepting that the statutory regime itself and the National Care Standards were wholly new and that the previous regulations had been repealed, the home continued to operate on a day to day basis as before, and the Commission was guided in its initial stages by the observations of previous inspectors. The fact that responsibility had been transferred was not universally known within the Fire Service.
12. It is not the position of the Care Commission that there was "a defect in management or inspection under the former provisions", nor is it proposed that "procedures adopted by a superseded regulator had any continuing effect or could have any effect on regulatory standard setting and continuing regulation". However, the Commission was obliged to have regard, in its initial inspection of care homes, to any reported examples of good or bad practice seen by inspectors carrying out their duties under the previous regime. This does not imply negligence on the part of either the former or latter inspectors, but merely helps the Sheriff Principal place the post-2002 inspection regime in its proper context. It is open to the court, in terms of Section 6 (1) (d) to determine that there may have been defects in the inspection system which, even to a limited and minor extent, contributed to the death or any accident resulting in the death.
13. With specific reference to Sadie Meany's evidence, referred to at Page 14 of the submissions of Lanarkshire Health Board that Care Commission inspection regime was "lax", this evidence was further clarified as relating specifically to the keeping of toiletries in cupboards[4853] . It was the witness's general evidence that she had no criticism of the Commission inspectors, whom she described as "very good" and "helpful"[4854]. So far as the evidence of the (unspecified) witness carrying out fire safety examinations then later being "told to discontinue with that practice on the footing that '...we don't do that'", it is submitted that, given the difference between the fire safety provisions of the 1990 Health Board Regulations and the 2002 Regulations, that that advice was, in terms of the regulations in force, correct.
CHAPTER 46 (3), (4) (5): CERTIFICATE OF COMPLETION: THE POSITION OF THE ARCHITECT AND BUILDING CONTROL AUTHORITY
1. The evidence in this Inquiry discloses a number of issues of concern in respect of the construction of the building at Rosepark. It is clear that a care regulator should be able to feel assured that a care home has been properly constructed, and that its construction is as reflected in the completion certificate. Care Commission inspectors are not trained in building matters, nor should they be expected to inspect the structural integrity of a care home. It is therefore important that an application for a completion certificate certifies compliance with the building warrant.
2. It is clear that the absence of fire dampers was not known to the architect, nor to the Building Control inspector. It further appears that the significance of this was not apparent to Mr. Thomas Balmer. The Care Commission professes no expertise in the field of building control, but observes that a more stringent building inspection regime might have uncovered the omission of the fire dampers. It leaves it to those tasked with the enforcement of building regulations to examine the implications of this in detail and has no comment on the submissions by North Lanarkshire Council..
CHECKING OF DOCUMENTATION
3. It is agreed that no regulator had carried out a check for documentation vouching: (a) the testing and inspection of the electrical installation, or (b) the testing and inspection of the ventilation system. The statutory responsibility for electricity at work rests with the Health and Safety Executive (HSE). Mr. Todd suggested that it would be desirable for the Care Regulator to check such documentation vouching the testing and inspection of the electrical installation, on the basis that this Regulator would regularly be visiting and inspecting the Home. The Care Commission does not consider that it, or its statutory successor with effect from April 2011, Social Care and Social Work Improvement Scotland (SCSWIS), should assume responsibility in its inspections for matters that are at present the responsibility of the HSE. It proposes that responsibility for this inspection process be undertaken by the HSE, and that, if necessary, this be specified by way of Memorandum of Understanding and referred to in the future revisions of the National Care Standards[4855].
4. The Care Commission agrees with the Scottish Ministers' views that to impose a duty of electrical inspection upon SCSWIS would be both inappropriate and inconsistent with legislative policy.
COMPETENCE OF RISK ASSESSORS
5. The Commission agrees that there should be some form of accreditation scheme for those practicing as risk assessors. Whether this be by way of a statutory scheme, or by way of industry-wide third party accreditation is not a matter upon which it elects to express any concluded view. It notes the comments of Scottish Ministers and has nothing to add.
CHAPTER 46 (6) (A): DEVELOPMENTS SINCE THE FIRE - THE IMMEDIATE AFTERMATH
1. The evidence relating to the aftermath of the fire revealed uncertainties about the respective roles of the Care Commission and Strathclyde Fire and Rescue Service ("SFRS") in matters of fire safety in the period up until the fire at Rosepark.
2. Towards the end of 2002 or the start of 2003, the Care Commission and the various Scottish Fire Authorities had begun working towards the creation of a set of Memoranda of Understanding, which would specify the respective roles and duties of the two bodies. Prior to this, there had been little understanding within either body of the specific roles, and limits upon roles, of the other body.
3. According to Hugh Adie, there was little understanding within Strathclyde Fire and Rescue Service on 1st April 2002 of the functions and responsibilities of the Commission[4856]. There had been no communication from the Scottish Government to the effect that care homes were no longer going to be regulated by the Health Boards[4857]. It took a considerable period of time, perhaps 12-18 months, for formal procedures to be put in place that would allow the registration process to carry on as before[4858]. His erroneous understanding was that the Care Commission had the same role in relation to the inspection of matters of fire safety as had the Health Boards[4859]. It is not clear precisely what information in this regard was given to him by Commission staff. At the time the Care Commission was set up, certain senior officials, including the Chief Executive Jacqueline Roberts, were aware of the practice of the Fife Fire and Rescue Service of carrying out annual inspections on a goodwill basis. Only after the Care Commission was up and running did it gradually become apparent that practices varied across the country[4860]. Jeff Ord's understanding prior to 2004 was as stated in Chapter 40 above that the Care Commission had responsibility for compliance.
4. The appointment of Alan Sheach as a fire safety advisor after the fire represented a recognition that it would be helpful to have a closer dialogue between the Care Commission and the Fire Services[4861]. He had been seconded from HM Fire Inspectorate to the Care Commission in February 2005. The purpose of his secondment was to provide strategic fire safety advice to the Care Commission and to ensure that the Care Commission was fully informed of any fire safety issues nationally[4862]. It was intended that his appointment would facilitate closer dialogue between the Care Commission and the Fire and Rescue Authorities.
5. While the process had commenced some time before the Rosepark fire, it was not until September 2005 that Memoranda of Agreement between the Commission and the Fire Authorities were signed[4863]. The purpose of the Memoranda was to clarify the relationship between the parties, when the Fire Services would inspect care services or give opinions on fire safety in care homes, and to ensure that there was close cooperation and mutual understanding between the parties on fire safety matters[4864].
6. By this time the true position in respect of inspections had been discovered by both parties, and this had an effect on the terms in which the Memorandum was signed. Mrs. Roberts now understood that the Fire Service took on responsibility for undertaking regular fire safety inspections in care home services after the end of January 2004. She was advised by representatives of the Fire Service after the fire that this had not happened consistently across all fire services before January 2004.
7. The appointment of Alan Sheach improved the Care Commission staff's understanding of fire safety. He was responsible for preparing an aide memoire for Care Commission officers as an interim measure until the anticipated new legislation was introduced[4865]. Before it was finalised he delivered fire safety lectures to staff and found that there was a need for them; they generated many hours of discussion, and he recognised the need to introduce the aide memoire to make sure that everything was being covered[4866].
8. The matter of door closers came to be addressed in detail for the first time since the inception of the Commission. Discussion took place in respect of the necessity to balance individual quality of life and the safety of all residents. The advice now issued was to the effect that bedroom doors needed to be closed at night, but there were ways in which a door could remain open if so wished and close in time of emergency (for example, by installing swing free door closers). Service providers were encouraged to look at the practices they wished to put in place to ensure that the doors could remain shut at night or be closed in an emergency[4867].
CHAPTER 46 (6) (B): DEVELOPMENTS SINCE THE ROSEPARK FIRE - STRATHCLYDE FIRE AND RESCUE SERVICE
1. The matters raised in this chapter relate to operational Fire Service practice. The Commission has no observations to make on either the evidence of Sir Graham Meldrum or Operational Technical Note A124, as these matters fall outwith the knowledge and remit of the Commission.
CHAPTER 46 (6) (C): DEVELOPMENTS SINCE THE ROSEPARK FIRE -
THE FIRE (SCOTLAND) ACT 2005, ITS REGULATIONS AND ITS CONSEQUENCES
1. The systems of regulation and enforcement of fire safety in care homes at the time of the fire at Rosepark were not united, in that the duties of the care regulator and those imposed in terms of the Fire Precautions (Workplace) Regulations 1997 were not designed to complement each other.
2. The Care Commission's regime of inspection, being specifically designed to reflect the needs of the service user rather than concentrating upon verification of records of adherence to regulatory requirements, was not designed to identify significant breaches of fire safety. Whether intended by Government or not, the new regime applied less stringent inspection rules than the preceding regime. At the time of the Rosepark fire, the organisation charged with regulating standards within care homes including certain record-keeping in respect of fire safety matters had not been advised of the practices of the Fire Service, or provided with a level of specialist advice and training that might have enabled its inspectors, if so instructed, to carry out a more detailed form of fire safety inspection and analysis. The organisation which did have that expertise, the Fire Brigade, was not inspecting care homes routinely across the country.
The Legislative history and contents of the Fire (Scotland) Act 2005
3. The initial stages of the procedure that culminated in the passing of the Fire (Scotland) Act 2005 are not a matter within the knowledge of the Commission, and it makes no comment. So far as the legislation itself and the 2006 Regulations made thereunder are concerned, the Commission agrees that the terms of the legislation are as stated by the Crown. Likewise, in respect of the Strategic Enforcement Guidance summarised at paragraphs 32-37 and the Fire Safety Guidance Booklet[4868] are concerned, the Commission has no specific observations to make beyond those made by the Crown.
Part III of the Fire (Scotland) Act 2005 and the Care Commission
4. Prior to the passing of the Fire (Scotland) Act the Care Commission would consult with the Fire and Rescue Authorities when a care home sought to be registered. In recognition of the fact that it was the Fire and Rescue Authorities who had the expertise where fire safety was concerned one of the intended reforms in the Act was that fire safety enforcement should be the responsibility of the Fire and Rescue Authorities.
5. The Act came into force on 1st October 2006. After that date the Care Commission retained responsibility for, inter alia, registration and inspection of care homes, but no longer for matters relating to fire safety. As stated by the Crown at Paragraph 44, with effect from that date the fact that the Care Commission was to cease to have any statutory involvement in matters of fire safety was reflected in the amendments to the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002[4869], effected by the Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No. 2) Order 2006, regulation 6[4870]. Following this, Care Commission inspectors all received guidance on how to approach their inspections in light of the passing of part III of the 2005 Act[4871]. The guidance contained a sample of the Fire Safety Checklist which now required to be completed and submitted to the Fire and Rescue Service as part of the process of registration.
6. The Care Commission amended the wording of its inspection reports to reflect that, in terms of the new statutory provisions it no longer reported on matters of fire safety as part of its regulatory function. The original post October 2006 wording and the current versions of the wording are lodged as items 1 and 2 of the Third Inventory of Productions for the Care Commission and stated at paragraphs 60 and 61 of the Crown submissions. The Commission, however, does not ignore clear issues of fire safety that may arise during inspections. Ronald Hill stated in evidence that the Commission no longer has responsibility for enforcement of fire safety but it does not ignore matters that come to its attention, otherwise it would not know whether there was any need to report matters to the Fire and Rescue Service[4872].
7. The 2005 and 2007 National Care Standards have not deleted the relevant references to fire safety. The references therein set out what residents and their families can expect from the service provider in respect of several standards, including those relating to health and safety, environmental health and fire safety. It would be unrealistic for Care Commission staff to visit a care service, notice an obvious fire safety risk and not refer it to the enforcing authority, namely the Fire and Rescue Authority. While the current wording of the statement in inspection reports may not offer a wholly correct summary of the current legal position and guidance, it is submitted firstly that this does not create any real confusion in practice, and secondly, given that the Commission is to be replaced by a new statutory body in April 2011, there may be no real benefit in revisiting this issue in detail at this time.
Future developments in the regulatory field
8. With effect from 1st April 2011, the role of the Care Commission in inspecting private care homes will be assumed by an organisation called Social Care and Social Work Improvement Scotland (or "SCSWIS"). With the exception of the regulation of private and independent hospitals (including hospices), the Care Commission's functions will be transferred to the new body[4873].
9. Care homes will come within the jurisdiction of SCSWIS, whose regulatory functions will be very similar to those under the 2001 Act and 2002 Regulations. The regulatory functions of SCSWIS will be broadly analogous to those of the Care Commission, based on an approach in which service providers undertake as effective as possible performance assessments of their services. There will continue to be an emphasis on working for improvement. There will no longer be a statutorily prescribed minimum frequency of inspection. Instead, the philosophy is that scrutiny should be much more risk based. Mrs. Roberts likened this to part III of the 2005 Act which is based on integrated risk assessment. The Care Commission currently has a very detailed risk assessment in place, which has been validated by Glasgow Caledonian University. It is proposed that SCSWIS will base its judgments of the frequency with which care homes require to be inspected more upon assessment of risk than is the case under the present Care Commission regime. Mrs Roberts anticipated that SCSWIS will have a very regular inspection regime for 24 hour services for vulnerable, older people[4874].
10. The Care Commission agrees with the Crown submission that it is important that early attention be given to placing the relationship between SCSWIS and the Fire and Rescue Authorities on a formal footing. Brian Sweeney stated that he considered that the relationship between the Fire service and the Care Commission should be as joined up as possible[4875]. This should continue in future, as it would reduce the likelihood of the two bodies being unaware of the duties and obligations, and limits on the duties and obligations of each other, as emerged in the immediate aftermath of the Rosepark fire.
11. Likewise, in respect of electrical installations it is important that the duty of inspection be clarified, if necessary by amendment to current statutory provisions. The Health and Safety Executive retains its role as the enforcement authority for the Electricity at Work Regulations 1989. Care Commission inspectors are and were not qualified to inspect electrical installations to any particular standard[4876] and the evidence is that they would not have done so at Rosepark in 2003 or 2004. That being so there is force in the view (a) that there should be clarity as between the potential regulators as to who will have the duty to inspect electrical installations, and (b) that the relevant inspectors should have instruction as to the nature of the documentation which they should expect to see. As it is not proposed that inspectors from SCSWIS possess any qualifications relevant to the analysis of electrical installations, the Care Commission proposes that the duty to inspect, and determination as to the frequency with which such inspections should take place, be given to the Health and Safety Executive.
12. The Care Commission notes that Scottish Ministers, at paragraphs 8-12 in their submissions on this chapter take a similar view. It therefore endorses their view.
Case No. BC376/09
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT HAMILTON
FINAL SUBMISSIONS FOR NORTH LANARKSHIRE COUNCIL
in causa
FATAL ACCIDENT INQUIRY INTO THE DEATHS OF
ANNIE (NAN) STIRRAT,
JULIA McROBERTS,
ROBINA WORTHINGTON BURNS, ISABELLA MacLEOD,
MARGARET LAPPIN,
MARY McKENNER,
ELLEN (HELEN) VERONICA MILNE, HELEN (ELLA) CRAWFORD,
ANNIE FLORENCE THOMSON, MARGARET DOROTHY (DORA) McWEE, THOMAS THOMPSON COOK,
AGNES DENNISON,
MARGARET McMEEKIN GOW, ISABELLA ROWLANDS MacLACHLAN
No comment in relation to the following chapters:
1
2
3
4
5
9
10
11
12
13
15
16
17
18 (formerly 17A)
19 (formerly 18)
20 (formerly 19)
21 (formerly 19A)
22 (formerly 20)
23 (formerly 21)
24 (formerly 22)
25 (formerly 22A)
26 (formerly 22B)
27 (formerly 22C)
29 (formerly 24)
30 (formerly 25)
31 (formerly 26)
32 (formerly 27)
33 (formerly 28)
34 (formerly 29)
35 (formerly 30)
36 (formerly 31)
38 (formerly 33)
39 (formerly 34)
40 (formerly 34A)
41 (formerly 35)
42 (formerly 36)
43 (formerly 37)
44(1)
44(2)
44(3)(A)
44(3)(C)
44(3)(D)
44(3)(E)
44(4)(C)
44(5)
44(6)
45(1)
45(2)
45(3)
46(2)
46(4)
46(5)
46(6)(A)-(F)
CHAPTER 6: CONSTRUCTION OF ROSEPARK CARE HOME
No comment save in relation to paragraph 40.
Whatever the understanding between Mr Balmer and Mr Dickie as to the contractual arrangements between them, it was not unreasonable for the Building Control authority to place weight upon the fact that an architect had signed the application for a Completion Certificate[4877]. (Reference is made to the submissions for North Lanarkshire Council in respect of Chapter 40(3)).
Chapter 7: Registration
Response to the Submissions (as adjusted) for Strathclyde Fire & Rescue, specifically: "Third, the party responsible for checking that the building conforms to the plans is the local authority Building Control Department. Fourth, a Fire Prevention Officer is not a Building Control Officer and does not have his skills or expertise. Fifth, at the time of the inspection Mr. McNeilly had the Building Control Certificate which, on the face of it, indicated the building had been constructed in accordance with the plans."
The following points are made:
While clearly a Fire Prevention Officer is not a Building Control Officer, this fact "per se" does not mean that a Building Control Officer has the "skills or expertise" in relation to ventilation. It is not necessary to reiterate in full the Submissions of North Lanarkshire Council as set out in Chapter 46(3) save to note that the Building Control Authority complied with all statutory duties and functions incumbent upon them. There was no specific duty upon the Building Control Authority to check whether fire dampers were installed. All inspections undertaken by them were carried out reasonably and in fulfilment of their duties and function.
CHAPTER 8: THE VENTILATION SYSTEM
No comment save for the following:-
Paragraph 2.1 (formerly 1.1) "a fire damper is designed to hold back flames, although it will also hold back smoke to a certain extent. Experiments undertaken by the BRE showed that such a damper would, indeed, once it closed, significantly prevent the flow of smoke along a duct, but that some smoke would escape along the duct before the damper would operate".
Had a fire damper been installed in the corridor 3/4 fire door due consideration must still be given to the evidence that the fire door was open during the course of the fire. There is uncertainty surrounding the timing of this but a number of witnesses including Mr Shipp and Mr Mortimore agree that the ingress of smoke and toxic gases via the door was more important than that via the ducting (reference is made to submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32)). There is doubt therefore as to whether, and if so to what extent, there was in fact additional smoke and gas ingress into Corridor 3 caused by a lack of fire dampers. In other words in such circumstances would it have made any impact or any significant impact upon the total volume of smoke and toxic gases within Corridor 3, had fire dampers been installed at this location.
Paragraph 14 of the Crown's Adjusted Submissions states: "The deficiencies mentioned in paras. 12 and 13 above were hidden from view above the suspended ceiling, but were obvious upon inspection of the system undertaken after the fire. They would equally have been obvious had an inspection specifically of the ventilation system been undertaken at an earlier stage in the life of the building by an appropriately skilled construction professional."
Agreed with the proviso that the Building Control Officer is not a construction/ventilation expert.
It is accepted (as far as coinciding with submissions for North Lanarkshire Council in respect of Chapters 6, 37 (formerly 32), 46(3) (formerly (40)(3)) as stated in paragraph 9 (formerly 8) that the Building Regulations in force at the time of the construction of Rosepark required fire dampers to be fitted at the points where the ventilation duct work passed through cavity barriers and compartment walls.
CHAPTER 14: CROSS-CORRIDOR DOORS
In respect of paragraph 6 which states:-
"Above the door on each side was an exit sign. A photograph of a similar fitting on the equivalent door downstairs can be seen in Pro 886A. The plastic of the fitting on the Corridor 3 side had become badly melted, as can be seen in Pro 336A", it is submitted that the melted exit sign contributed to the fire door between Corridors 3 and 4 remaining open during the course of the fire thereby allowing ingress of smoke and toxic gases (reference is made to submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32)).
In reference to the proposed determinations by Lanarkshire Health Board in relation to glazed vision panels in cross‑corridor fire doors, it is submitted that there is no evidence as to when the doors which were in situ at the time of the fire were installed.
In the absence of such evidence, there cannot be ruled out the possibility that from the time of the construction of Rosepark to the date of the fire in January 2004 that these doors may have been changed. Indeed Hugh Gibb when asked about the cross corridor door stated that it should have had a vision panel. "If that had been the door in place when you carried out your completion inspection, would you have been content with it? - Certainly without the vision panel, no."[4878]
It is worthy of note that in any event, and notwithstanding when the doors were fitted (or the question as to whether the doors were ever changed), the purpose of vision panels within cross corridor doors does not relate to fire safety but serves to afford sight of persons coming in the opposite direction.[4879]
Finally, it is submitted that it is a matter of conjecture given the direction staff took at the outset (in proceeding to the lower ground floor) that they "would immediately have seen that corridor 3 was contaminated by smoke and that corridor 4 was smoke‑logged." Distances involved between the various doors and corridors; the size of any vision panels (had they been installed); the level, extent and density of smoke at any specific point in time and place; the eyesight (or condition of the eyesight) of individual staff; how swiftly staff were moving and where and what they were focusing upon in their haste, would all be factors requiring due consideration (and evidence) in weighing up any likelihood of staff awareness as to the presence and whereabouts of smoke.
There is therefore, it is respectfully submitted no evidence to support the proposed determinations which are based upon supposition. On that basis they ought to be discounted.
CHAPTER 28 (formerly 23): THE EVENTS OF THE NIGHT
No comment save to refer to the submissions for North Lanarkshire Council in respect of Chapter 44(3)(F) (formerly 38(3)(F)).
CHAPTER 37 (formerly 32): DEVELOPMENT OF THE FIRE: CORRIDOR 3
No comment other than in relation to paragraphs 4 to 6 which state:-
"4. Smoke and toxic gases penetrated Corridor 3 in two principal ways:
4.1 At the Corridor 3/4 fire door; and
4.2 Through the ventilation ducting.
There may also have been some minor spread of smoke through unstopped penetrations in the firewall that separated the two corridors.
Smoke penetration at the Corridor 3/4 fire door.
5. Smoke and toxic gases passed into Corridor 3 at the Corridor 3/4 fire door. There was a V shaped pattern of smoke damage on the Corridor 3 side of the fire door. Furthermore, the plastic of the light on the Corridor 3 side of the door had been significantly melted. There was also heat damage to the paint on the Corridor 3 side of the door. It follows that this fire door was open during the fire to sufficient extent to allow heat, smoke and fire gases to pass from Corridor 4 into Corridor 3.
6. Following the fire:
6.1 The plastic of the fire exit light (in particular the diffuser) which was located above the door on the Corridor 3 side was found to have melted.
6.2 Material from the fitting had dropped on to the top of the leaf in its molten state and the door leaf had closed onto it leaving an imprint.
6.3 Melted plastic was found on the carpet immediately below the location of that light (Label 699). The smear of plastic had been gathered up into a lump with a flat side, consistent with the edge of the door resting against the plastic at that point.
6.4 A plastic material was found adhered to the base of the kick plate and on the base of the door leaf, under which it had passed for a distance of approximately 320 millimetres from the leading edge of the leaf.
6.5 The plastic material was of the same composition to the diffuser of the fire exit sign on the Corridor 3 side of the door which had melted".
This ought reasonably to beg the question that had fire dampers been installed, to what extent (if any) would they have contributed to the reduction of smoke and toxic gases within Corridor 3 given that "this fire door was open during the fire to sufficient extent to allow heat, smoke and fire gases to pass from Corridor 4 into Corridor 3". Furthermore, this also leaves room for considerable doubt as to the part which a lack of fire dampers played in the deaths in Corridor 3.
Whilst the proposed determination stated in Chapter 43(3)(F) (formerly 38(3)(F)) that "the installation of fire dampers would have been a reasonable precaution" is accepted (subject to submissions elsewhere on behalf of NLC), the second proposed determination that "had fire dampers been installed this might have avoided some of the deaths in Corridor 3" must it is submitted be viewed with a degree of scepticism. The fact that the fire door was open during the fire coupled with evidence set out within the conclusion to Chapter 44(3)(B) (formerly 38(3)(B)) re Corridor 3 that "if the bedroom doors of Isa MacLachlan and Margaret Gow had been closed they would have survived" indicates that other factors were significant. Paragraph 12 of Chapter 45 (5) (formerly 39(5)) which states "had the bedroom doors been closed, and had the Fire Brigade been called immediately, on the night of the fire, and had the staff been effectively trained and drilled in what to do in the event of a fire alarm sounding, the deaths of Margaret Gow and Isabella MacLachlan would probably have been avoided" also reflects this.
Further uncertainty on the role (if any) that the lack of fire dampers played re deaths in Corridor 3 is brought to bear by virtue of the comments within paragraph 5 of Chapter 38(3)(F) where it states that "the relative significance of the smoke and toxic gases which entered Corridor 3 by way of the ducting system (without its damper) and by way of the fire door cannot be determined with certainty and it seems likely that ingress by the door was more important than ingress via the ducting ...".
The conclusions of the BRE tests as set out in paragraphs 20 and 21 "inter alia" state that while the extract system was in operation smoke was not passing into Corridor 3. The inference is drawn in paragraph 21 that the extract system stopped working at or about 4.34 a.m.
The Crown's submissions then go on to state: "The relative significance of these two sources of smoke and toxic gases in Corridor 3.
Paragraph 22 (formerly 1.) The relative contributions to the toxic atmosphere in Corridor 3 of the two major sources of smoke and toxic gases (i.e. at the fire door and through the ducting) cannot be determined with any certainty or precision. Quite apart from any other considerations, while the timing of the failure of the fan (and hence smoke passing into Corridor 3 and the central stairwell) can be identified, the time when the Corridor 3/4 fire door opened is unknown.
Paragraph 23 (formerly 2.) It may be concluded that smoke and toxic gases passing through the ducting certainly contributed to the toxic atmosphere in Corridor 3. Mr Shipp's view was that there could have been reasonable quantities of smoke coming through the ducts - possibly, but probably not, in quantities which would on their own have been life threatening. Mr Mortimore's view, drawn with a degree of caution from the amount of smoke staining and the heat effects at the door, was that the door was considerably more significant than the smoke that came through the duct work".
Evidence by Professor David Purser also reflects the views above: "...there was more penetration of fire gases from the fire in Corridor 4 through into Corridor 3 and the open rooms of Corridor 3 and this can only have been by a greater degree of opening of the fire doors during the fire. You will remember that during the fire, during the BRE test we observed that when the aerosol cans exploded, each time there was a pressure pulse that caused the fire doors to open and so we believe the same phenomenon would have occurred in the actual Rosepark incident and that the main, one of the main mechanisms whereby these gases are being transferred from the corridor fire area through into Corridor 3 area but in the actual incident it would appear that that degree of penetration was greater and that, I believe I remember there was a light fitting that was hanging down that may have partly prevented the doors from closing in the actual incident. So for whatever reason there seems to have been almost certainly, whilst this is telling me there was more penetration ... of gases in the real incident than in the test[4880]".
Professor Purser also said: "...that if occupied rooms off Corridor 3 all had their doors fully closed, all the occupants would have survived with minimum injury, as did Mary Dick. Occupants of partly open rooms also suffered some injury from the effects of the 16 gases and smoke irritants, but made a good recovery. The two occupants of open rooms in Corridor 3 inhaled approximately 30% more fire effluent than those of partly closed rooms[4881]"
I would respectfully submit that the foregoing comments lend further weight to the argument that the second proposed determination as mentioned above, ought to be discounted in the light of the evidence, and if not so discounted then ought at the very least to be given minimal emphasis or weight given the number and strength of the other factors being brought to bear in relation to the ingress of smoke and toxic gases into Corridor 3. There is insufficient evidence as to the amount and level of any smoke or toxic gases which may have passed into Corridor 3 between any period of time which may have elapsed between the operation of fire dampers had they been installed and the fire door opening (and remaining open). In such circumstances it is perhaps not unreasonable to extenuate the part that a lack of fire dampers played. The fire door being opened during the fire and the bedroom doors of Isa MacLachlan and Margaret Gow being also open ensured that smoke and gases had a ready route into rooms 18 and 20 respectively. These factors alone as borne out by the evidence of Mr Shipp and Mr Mortimore referred to above, would it is submitted be a significant cause of the deaths of these two residents.
CHAPTER 44 (formerly 38(3)(B)) - BEDROOM DOORS
No comment save to refer to submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32), and 44(3)(F) (formerly 38(3)(F)).
CHAPTER 44(3)(F) (formerly 38(3)(F)): PROTECTION OF THE MEANS OF ESCAPE: FIRE DAMPERS
Whilst the proposed determination that "the installation of fire dampers would have been a reasonable precaution" is accepted (subject to submissions elsewhere on behalf of North Lanarkshire Council), the second proposed determination that "had fire dampers been installed this might have avoided some of the deaths in Corridor 3" must it is submitted be viewed with a degree of scepticism. The fact that the fire door was open during the fire coupled with evidence as set out within the conclusion to Chapter 44(3)(B) (formerly 38(3)(B)) re Corridor 3 that "if the bedroom doors of Isa McLachlan and Margaret Gow had been closed it may reasonably be concluded that they would have survived" indicates that other factors were significant. Paragraph 12 of Chapter 45(5) (formerly 39(5)) "had the bedroom doors been closed, and had the fire brigade been called immediately, on the night of the fire, and had the staff been effectively trained and drilled in what to do in the event of a fire alarm sounding the deaths of Margaret Gow and Isabella MacLachlan would probably have been avoided" also reflects this.
Further uncertainty on the role (if any) that the lack of fire dampers played re the deaths in Corridor 3 is brought to bear by virtue of the comments within paragraph 5 of Chapter 44(3)(F) (formerly 38(3)(F)) that "the relative significance of the smoke and toxic gases which entered Corridor 3 by way of the ducting system (without its damper) and by way of the fire door cannot be determined with certainty and it seems likely that ingress by the door was more important than ingress via the ducting ...".
(Submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32) are referred to as being of relevance to the above).
It is accepted (as far as coinciding with submissions for North Lanarkshire Council in respect of Chapters 6, 37 (formerly 32), 46(3) (formerly 40(3)) that as stated in paragraph 1.1, 1.2 and 1.3 that the Building Regulations in force at the time of the construction of Rosepark required the installation of fire dampers "inter alia" above the Corridor 3/4 fire door; that the "warranted drawing specified "fire dampers to duct where passing through ...cavity barrier or stair enclosure"; and that "it was a condition of the warrant that the building be constructed in accordance with the Building Standards and the warranted drawings".
Paragraph 2 is accepted subject to the question as to whether "...once closed, would have significantly reduced the quantity of smoke travelling along the duct work and into Corridor 3..." given the fact that the fire doors were open during the fire (as discussed further in submissions for North Lanarkshire Council in respect of Chapters 8, 37 (formerly 32), 45(4) (formerly 39(4)).
As regards paragraph 3 the fact that "before the fire damper operated, some smoke would have passed along the duct work" echoes discussion within Chapter 8 and again it is submitted casts doubt upon the virtue or weight to be placed upon proposed determination two above. (Submissions for North Lanarkshire Council in respect of Chapters 8, 37 (formerly 32) and 45(4) (formerly 39(4)) are again referred to).
Paragraph 5 states: "The relative significance of the smoke and toxic gases which entered Corridor 3 by way of the ducting system (without its damper) and by way of the fire door cannot be determined with certainty and it seems likely that ingress by the door was more important than ingress via the ducting. However, the smoke and toxic gases which entered Corridor 3 via the ducting certainly contributed to the toxic atmosphere there, as a result of which four residents died and could have been sufficient on their own to have been life threatening. Accordingly it can, at least, be said that had the fire dampers been in place, this might have avoided the deaths in Corridor 3".
Sentence 1 of paragraph 5 above has been referred to in submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32).
In respect of paragraph 5 of the Crown's Adjusted Submissions specifically where it is stated "according to Mr. Shipp, however, the quantity of smoke passing into Corridor 3 through the ducting could have been (though it probably was not) sufficient on its own to have been life threatening." I would submit that this statement is perhaps misleading and does not accord with what the witness in fact stated in evidence. On 15th April 2010 a.m. (page 62) it is noted that Mr. Shipp said "I took the view that there, there could have been reasonable quantities of smoke coming through those, through those ducts but probably not in itself, in life threatening quantities." I would respectively submit that this is different to saying "the quantity of smoke ... could have been sufficient on its own to have been life threatening." A "reasonable quantity of smoke" does not equate with the quantity of smoke being sufficient to be life threatening. There does of course remain uncertainty as to quantities of smoke and the source thereof (whether this was through the ducting due to the absence of fire dampers or by means of the open fire door) so it cannot be said with any degree of certainty that there were "reasonable quantities of smoke coming through those ducts. However, in any event Mr. Shipp does take the view that there could have been reasonable quantities of smoke by means of the ducts. Nevertheless, he is also of the view that it was "probably not in itself, in life threatening quantities"
This point (as to the non life threatening aspect of smoke coming through the ducts) was further emphasised by Mr. Shipp in his evidence (15th April 2010 a.m. page 63): "it is my opinion the tests have indicated the volume of smoke that is likely to have travelled from the initial cupboard in Corridor 4 to Corridor 3 by the ventilation ducting may not by itself have been hazardous." On 16th April 2010 a.m. (page 136) he was asked whether he agreed that smoke passing through the ducting from Corridor 4 into Corridor 3 would make the conditions in Corridor 3 unpleasant but not untenable to which proposition he agreed. Again (page 137) he stated "the quantity of smoke that passed through into Corridor 3 in our test, even with the damper missing, in my opinion wasn't in itself life threatening."
Mr. Mortimore (17th March 2010 a.m. page 43) stated "the door is probably the most significant. ... (page 45) "looking at the amount of smoke staining and the heat effects we have got coming through the door, I would say the door is considerably more significant than any smoke that came through the duct work."
Paragraph 6 goes on to state "in these circumstances, where injury or death has been caused by such a toxic atmosphere, any source which makes a material contribution to that toxic atmosphere may, in a situation of uncertainty as to the precise contributions made by that source and other sources, properly be regarded as causing the injury or death."
There is, I would submit no evidence that the smoke entering Corridor 3 via the ducting was or could be considered as "material". Whilst Mr. Shipp was of the view that there were "reasonable quantities of smoke" he did also opine that this in itself was not "life threatening". There is no evidence as to the respective percentage or volume of smoke and toxic gases from the ductwork and entering via the corridor 3/4 fire door. In the light of this evidence, I would submit that the court cannot conclude that the smoke entering Corridor 3 via the ducting caused the deaths in Corridor 3. The court must consider this also in conjunction with the evidence in relation to the open bedroom doors. Indeed the Crown propose a determination in respect of Chapter 44(3)(B) (formerly 38(3)(B)) that "1. It would have been a reasonable precaution for all bedroom doors to be closed in the event that a fire alarm sounded. 2. Had this precaution been taken the deaths, or some of them, might have been avoided." In Chapter 44(3)(B) in respect of Corridor 3, at paragraph 21 it is stated "It may reasonably be concluded that had the bedroom doors of Isa McLachlan and Margaret Gow been closed they would have survived with minimal, if any, injury."
Paragraph 7 of the Crown's Submissions state "in the present case, as a result of the toxic atmosphere within Corridor 3, two residents of Corridor 3 died. It is not necessary to go so far as to say that the absence of fire dampers did in fact make a critical difference to the survivability of the toxic atmosphere in Corridor 3. In suffices for the purposes of a determination that, in a situation of uncertainty, if fire dampers had been in place, this might have avoided the deaths in Corridor 3."
I would submit that there is no evidence upon which to base this conclusion upon. There is no evidence that "the absence of fire dampers did in fact make a critical difference to the survivability of the toxic atmosphere in Corridor 3". A degree of caution ought to be observed, in the absence of evidence, in reaching a conclusion that "in a situation of uncertainty, if fire dampers had been in place, this might have avoided the deaths in Corridor 3".
Likewise, paragraph 8 (formerly 6) is disputed for reasons akin to those of paragraph 5, namely the fact that the fire doors were open during the course of the fire and the significance of this in relation to quantities of smoke and toxic gases. It is difficult to envisage how the installation of dampers in these circumstances (or any circumstances) would have affected decisions of experienced fire fighters to enter a particular area. It is also noted elsewhere in the submissions for the Crown that there were issues in relation to location of the fire in terms of the Fire Panel and Zone cards both in respect of staff on duty (reference is made to Chapter 44(4)(A) (formerly 38(4)(A)) and fire personnel (reference is made to paragraph 174 of Chapter 28 (formerly 23) which states: "Mr Campbell's belief that there was a fire situation at the lower level was in fact erroneous. This ought to have been apparent if, as he should have done, Mr Campbell had checked the whereabouts of Zone 3 against the Zone card beside the fire panel..."). It is therefore submitted that these were the relevant factors bearing upon decision making of staff and fire crew and not as is suggested any issue surrounding the (disputed) level of smoke due to lack of fire dampers.
It is also of relevance here to note the findings in paragraph 5 of Chapter 44(4)(A) (formerly 38(4)(A)) where it states: "right at the outset, a critical error was made as to the location of the alarm which had been activated. Instead of going to Corridor 4 where the fire actually was, staff investigated the foyer area and downstairs. In effect, they investigated all parts of the building other than the area where the fire actually was". Paragraph 6 of that same chapter goes on to say: "had Isobel Queen accurately identified at the outset the location of the alarm which had activated, she would - even applying the inadequate procedure which pertained at the Home - have immediately sent two members of staff to investigate that area".
(Submissions for North Lanarkshire Council in respect of Chapter 44(4)(B) (formerly 38(4)(B)) are also referred to in relation to the determination in respect of training and drills).
The suggestion that the smoke was such as to "deter an experienced fire-fighter from entering the stairwell" is perhaps inaccurate in the light of the evidence seen in Chapter 28 (formerly 23) namely that decisions made by fire crew were made initially as a consequence of information provided from staff such that it was considered the fire was in the lift and also that other staff members had gone downstairs. Crew were dispatched to the lower floor following the imparting of this information. Paragraph 171 of Chapter 28 (formerly 23) states: "if he had examined the Zone card (Production 180) at the time when mention was made of Zone 3 he would have understood that the panel was indicating an area on the ground floor and not the lower ground floor. At that point he had a good understanding of the layout of the ground floor. However, his position was that since the staff had given him definite information as to the location of the fire he did not check the fire alarm panel ...". In this regard reference is also made to paragraphs 8 and 9 of Chapter 44(7) (formerly 38(7)).
It is further submitted that in relation to paragraphs 9, 10, and 11 (formerly 7, 8 and 9) of the current chapter, the matters set out once more reflect difficulties in relation to interpretation, understanding and use made of the fire alarm panel and Zone cards in determining the location of the fire and accordingly the lack of fire dampers has it is submitted, no bearing.
CHAPTER 44(4)(A) (formerly 38(4)(A)) - INFORMATION AT THE PANEL
No comment save to refer to submissions for North Lanarkshire Council in respect of Chapter 44(3)(F) (formerly 38(3)(F)).
CHAPTER 44(4)(B) (formerly 38(4)(B)): TRAINING AND DRILLS
It is submitted that the following ought to be taken into account in respect of the submissions for North Lanarkshire Council in relation to Chapter 44(3)(F) (formerly 38(3)(F)) in particular in relation to paragraphs 6-9 of that chapter:
"Proposed determination:
1. It would have been a reasonable precaution for staff to have been provided with adequate training and drills and the action required of them in an emergency.
2. Had this precaution been taken, some or all of the deaths might have been avoided"
...
Had this precaution been taken, the deaths might have been avoided.
7. The uncertainty and confusion which may be seen on the CCTV footage is just what one might expect to happen in a Home which did not have an effective training regime. Staff who had been effective trained and drilled would have been expected to respond in a significantly more decisive manner. Had staff been effectively and appropriately trained, the following is the likely course of events even assuming staff followed the emergency procedure which was prescribed at Rosepark.
7.1 Isobel Queen would have immediately identified correctly the area of the Home where the alarm had been activated. She herself attributed the error which she made to a lack of training. Further, had she been properly trained she could have had no misapprehension as to her role and would have been equipped to act effectively in that context.
7.2 She would immediately have dispatched two members of staff to that area.
7.3 Those members of staff would have arrived at the location in time to engage in emergency fire-fighting.
7.4 If they had been effectively trained in the use of fire extinguishers, it could be anticipated that the fire would have been extinguished at this stage.
7.5 Even if they had not been able to do this, the staff would have shut the cupboard door and the bedroom doors in the area. This would have been bought material additional time and provided temporary protection to the residents in their rooms.
7.6 Even applying the procedure which was followed at Rosepark, one of the members of staff would have returned to tell Isobel Queen that there was a fire and a 999 call would have been made. The arrival of the fire service would have been significantly expedited as compared with the events of the night.
8. One may conclude that in these circumstances some or all of the deaths might have been avoided - indeed it is likely that some or all of the deaths would have been avoided - for the reason set out above.
CHAPTER 44(7) (formerly 38(7)): EARLY AND SUFFICIENT RESOURCING OF THE INCIDENT BY THE FIRE BRIGADE
In reference to submissions for Strathclyde Fire & Rescue, specifically comments made in respect of Proposed Determination 1.3 ("For Station Officer Campbell to have confirmed with the staff of Rosepark whether the doors to the bedrooms beyond corridor 2 were open or closed") reference is made to the submissions for North Lanarkshire Council in respect of Chapters 8, 14, 37 (formerly 32), 44(3)(F) (formerly 38(3)(F)) and 45(4) (formerly 39(4)).
CHAPTER 45(4) (formerly 39(4)) - DEFECTS IN SYSTEMS OF WORK: MANAGEMENT OF THE CONSTRUCTION PROCESS
No comment save in relation to the Statement in Paragraph 5 (formerly 4) which states "the absence of fire dampers made a contribution to the toxic atmosphere in Corridor 3".
There is no evidence as to what percentage of smoke and toxic gases was due to the lack of fire dampers and indeed whether it contributed at all (or to any significant extent) in view of the fact that the fire door was open during the fire. I would refer again also to the submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32).
CHAPTER 45(5) (formerly 39(5)) - DEFECTS IN SYSTEMS OF WORK: INTERACTION BETWEEN ROSEPARK AND THE HEALTH BOARD
No comment save insofar as the Crown submissions relate to the issue of the bedroom doors in Corridor 3 which has already been commented upon in the submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32).
CHAPTER 46(1) (formerly 40(2)) - ENFORCEMENT OF THE FIRE PRECAUTIONS LEGISLATION
In response to the submissions for Strathclyde Fire & Rescue, it is submitted that there were no duties or responsibilities incumbent upon North Lanarkshire Council under either the Fire Precautions (Workplace) Regulations 1997 or the Management of Health & Safety at Work Regulations 1999 to inspect Rosepark Care Home.
Furthermore, North Lanarkshire Council were not the enforcing authority under these Regulations (in relation to fire safety matters).
At the time of the fire the Care Commission were the regulatory authority for Rosepark Care Home, and prior to the inception of the Care Commission in April 2002, NHS Lanarkshire had regulatory responsibility. The Council has never held any regulatory responsibility for inspecting Rosepark Care Home.[4882]
CHAPTER 46(3) (formerly 40(3)) - CERTIFICATE OF COMPLETION: THE POSITION OF THE ARCHITECT AND BUILDING CONTROL AUTHORITY
This chapter commences with the proposition: "It is a fact relevant to the circumstances of these deaths that a Certificate of Completion was issued in circumstances where there had been a serious failure to comply with Building Regulations (in respect of the omission of fire dampers)."
The section on "Building Control" states as follows:
1. In terms of the relevant legislation the local authority was enjoined to grant a Completion Certificate if "so far as they are able to ascertain, having taken all reasonable steps on that behalf, they are satisfied that the building complies of the conditions on which the relative warrant was granted."
2. What steps were "reasonable" was not further defined. There was no prescribed level or number of inspections which required to be made. The final inspection itself would normally be a walk-through non-disruptive inspection, with the detail of the inspection affected by such matters as the prior involvement of the Inspector with the building and others such considerations. No criticism falls to be made of the number of inspections undertaken by Mr Gibb of this particular building. Nor could he be expected to inspect every location where there might be a damper, or, indeed for every potential breach of the Building Regulations. The Building Control Inspector does not perform the function of a Clerk of Works.
3. Furthermore, there is scope for professional judgement as to whether any particular enquiry is a necessary one. While Mr Sorbie would himself have regarded it as reasonable to make enquiry in relation to fire dampers, he would not be critical of a Building Control Inspector who took a different view. Ultimately, he was not prepared to say that the building authority in this case had failed to take all reasonable steps. One requires to be mindful that the Building Regulations imposed requirements as regards many matters not all of which can be the subject of inspection".
Moreover, Mr Sorbie acknowledged that it was easy with the benefit of hindsight to say checks should have been made to see if fire dampers were in place.[4883]
The Building Control Authority complied with all statutory duties and functions incumbent upon them. Furthermore, all inspections undertaken by them were carried out reasonably and in fulfilment of their duties and functions.
Hugh Gibb visited the site on around 20 occasions. He confirmed that the only statutory visit Building Control required to carry out was in respect of drainage and drain testing. Other inspections were visual inspections and done when possible within the workload. [4884]
Mr Sorbie also confirmed that there was no prescribed inspection other than drainage. [4885]
He also stated "It would not be expected of the Building Control Officer to inspect every aspect of the building". [4886]
There was no specific duty upon the Building Control Authority to check whether fire dampers were installed.[4887]
Hugh Gibb was satisfied that he had taken all reasonable steps to ascertain that the building was completed in conformity with the warrant, plans and building regulations.[4888]
He spoke too of appropriate management of time with limited resources and as such judgements and risk assessments had to be made. If failures were found at an early stage then this would lead to suspicions. [4889]
Thomas Sorbie also said "The Inspector would look to past history... highlight if there has been any problems on the site already. Final inspection itself is generally just a walk round inspection. It is a non disruptive inspection... it has happened in my own particular cases that the final inspection has been the only inspection... also depend on the time you have available to do it ... if there had been a lot of inspections, it may be a quick walk through at the end.[4890]
Mr Sorbie also accepted that it was with the benefit of hindsight that he would be saying checks should be made to see if fire dampers were in place. At the time other factors and judgement calls regarding the whole circumstances including time and resources were at play. [4891]
It is also respectfully submitted that for reasons as set out within previous chapters, in particular as detailed in the submissions for North Lanarkshire Council in respect of Chapter 37 (formerly 32), that in the specific circumstances of Rosepark Care Home there is substantial evidence to cast doubt (or at least to cause great uncertainty) as to whether the presence of fire dampers would have prevented the deaths in Corridor 3.
Ruth M. McCormick
Solicitor
17 February 2011
for
SCOTTISH MINISTERS
re
FIRE AT ROSEPARK NURSING HOME: FATAL ACCIDENT INQUIRY
Introduction
Scottish Ministers' interest in the Inquiry
Most of the Interested Parties represented at the Inquiry had direct involvement in Rosepark Nursing Home, prior to and/or on the night of the fire. Scottish Ministers' ("SM") position is a stage removed from such direct involvement. The Inquiry was intimated to them on the basis that issues might arise bearing upon the system of regulation of fire safety in care homes.
SM were represented at most, but not all, of the hearing of evidence. Their representatives did not attend certain chapters of evidence which it was considered were unlikely directly to affect their interests. A notable example is that chapter of evidence which dealt with the likely cause of the fire. SM therefore take no position on that issue.
Approach to submissions
Interested Parties have been provided with the Crown Submissions in draft in advance of making their own submissions. They have been asked to reply to the Crown Submissions in accordance with the layout adopted by the Crown. SM have considered the Crown Submissions in their entirety. However, in order to assist the Court in the substantial task of reaching its determination, SM's Submissions are confined to those matters where either they take issue with the Crown Submissions or consider they have something useful to add to them. SM's Submissions are accordingly focused predominantly upon regulatory issues, with particular reference to the proposed determinations set out by the Crown.
Chapter 46(1) - Enforcement of the Fire Precautions Legislation
SM accept that the summary of the evidence set out in the Crown Submissions is generally fair and accurate.
At paragraph 4, it is stated that section 10 of the Fire Precautions Act 1971 "was applicable to nursing homes." For the avoidance of doubt, it may be worth making clear that this section was applicable to a wide range of premises, including nursing homes.
As is apparent from the Crown Submissions, the evidence about Strathclyde Fire and Rescue Service's ("SFRS") approach to enforcement and inspection pursuant to the Fire Precautions (Workplace) Regulations 1997 ("the 1997 Regulations") was not entirely clear or consistent. SM respectfully submit that it is beyond the scope of the Inquiry to seek to untangle incomplete and, at times, contradictory evidence about what, exactly, Fire and Rescue Services ("FRSs") did or ought to have done by way of inspection under these Regulations. Such an exercise could not be justified by reference to concerns about the future, since the Regulations were repealed with effect from 1 October 2006.
A narrower question which is of potential interest to the Inquiry is whether in terms of the 1997 Regulations SFRS were obliged to carry out an inspection of Rosepark prior to the date of the fire. The reason for that question being of potential interest, as explained by the Crown, is that if Rosepark had been the subject of inspection by a fire safety officer pursuant to regulation 10 of the 1997 Regulations "it is probable that either (i) the absence prior to 6 January 2003 of a premises risk assessment or (ii) the deficiencies in Mr Reid's risk assessment would have been noticed."[4892]
SM agree that the evidence indicated that SFRS did not establish a regime of inspection that included nursing homes for the purposes of enforcement of the 1997 Regulations. However, taking the evidence as a whole, and in light particularly of the considerations summarised in paragraphs 110-120 of the Crown Submissions, SM agree also that it cannot be concluded that the absence of any such system of inspection amounted to a defective system of working.
Response to submissions by SFRS
6. In their response to Chapter 46(1) , SFRS assert that responsibility for enforcing the 1997 Regulations "in relation to non employees must rest with another statutory authority ... [which] ... would be either the Health and Safety Executive or the local authority." As SFRS acknowledge, this question did not feature significantly in the Inquiry. The interpretation advanced by SFRS was not put to representatives of the local authority or the Health and Safety Executive ("HSE").
7. Neither SFRS nor any other party proposes that the Court make a determination on this issue. In SM's respectful submission, there is no need for the Court to reach a conclusion on the issue of interpretation raised by SFRS in relation to Regulations which were repealed some years ago. However, for sake of completeness, SM confirm that they do not endorse or support the interpretation advanced by SFRS in their brief submissions on this question.
Chapter 46(4) - Checking of documentation
1. The Crown submits that:
"It is a fact relevant to the circumstances of these deaths that there had been no external check for documentation vouching: (a) the testing and inspection of the electrical installation; or (b) the testing and inspection of the ventilation system."
2. The Crown adds that "the evidence in this inquiry did disclose an issue which the relevant regulators (i.e. the HSE, the Fire Authorities and the successor to the Care Commission) might be invited to consider."
3. The Crown refers to Colin Todd's agreeing with the proposition that "the important thing is that this should be done by someone".[4893] This proposition was put to him in the context of testing and inspection of the electrical installation rather than of the ventilation system and/or fire dampers.[4894] It is not entirely clear whether the Crown's suggestions about checking of documentation by regulators[4895] are restricted to documentation vouching the testing and inspection of the electrical installation or extend also to the ventilation system and/or fire dampers. In either case, if records of inspection and testing are to be checked by an outside body, that does not seem an appropriate task for the Care Commission ("CC") or its successor, Social Care and Social Work Improvement Scotland ("SCSWIS").
4. The duty to inspect electrical installations in care homes - as in other premises - lies with the proprietor rather than with any regulatory body. Practical Fire Safety Guidance for Care Homes draws attention to electrical equipment as a significant cause of accidental fires. It states that that all electrical equipment should be installed and maintained in a safe manner. It also makes clear that an effective programme of planned preventative maintenance for all fixed installations and portable appliances should be implemented for the premises.[4896]
5. Inspection may arise in a second sense of some other party checking that such inspection has been carried out by or on behalf of the proprietor. While the Health and Safety Executive ("HSE") is the enforcing authority in respect of electrical matters, there was no evidence at the Inquiry that it carries out electrical inspections of care homes, or other premises, in the sense of visiting them on a regular, programmed basis.
6. The HSE has published guidance on health and safety in care homes.[4897] It specifically excludes fire safety, but does contain guidance on electrical installations and portable appliances. It recommends testing at five yearly intervals.
7. SCSWIS will take over the CC's role in relation to care homes. The possibility of CC inspectors checking records of inspections of electrical installations in care homes was raised, albeit briefly, at the Inquiry. The CC's Chief Executive, Jacquie Roberts, was firm in her view that this was not a task which ought to be entrusted to the CC whose inspectors were not qualified in such matters.[4898] The same considerations would apply in relation to SCSWIS. Moreover, to the extent that such inspection is related to concerns about fire safety, entrusting it to SCSWIS would be inconsistent with legislation which has removed responsibility for fire safety from the CC (and its successor, SCSWIS) and placed it with the FRSs.
8. In SM's view, this is not a matter for SCSWIS. If discussion is required with a view to achieving clarity, the interlocutors should be the body responsible for enforcement of the Electricity Regulations (the HSE) and the body responsible for carrying out fire safety inspections in care homes (the FRSs). As to the checking of records vouching the testing and inspection of the ventilation system, this is a matter for consideration by the body charged with responsibility for fire safety inspections of care homes, namely the FRSs.
Chapter 46(5) - Assurance as to the competence of fire risk assessors
1. Evidence at the Inquiry established that the author of the fire risk assessment at Rosepark current at the time of the fire was not qualified by experience or training to undertake such an assessment. The Crown, under reference to evidence given by Colin Todd, states that legislation "does not prescribe that persons who hold themselves out as competent to assist duty-holders with fire risk assessments have any particular qualification or experience to do so." While that statement is factually accurate, SM offer the following observations with a view to putting it in context.
2. Ensuring that persons who offer to carry out fire risk assessments are suitably qualified is not an end in itself but a means to an end. What ultimately matters is that the risk assessment is suitable and that it is acted upon. As is acknowledged in the Crown Submissions[4899], a suitable and sufficient fire risk assessment was (and remains) a statutory requirement.
3. The legislation requiring that a risk assessment be undertaken is not specific to care homes. Moreover, even where a duty holder engages a consultant to carry out, or assist with, the risk assessment, it remains the duty holder's risk assessment. If a suitable risk assessment is not carried out, he is in breach of statutory duty.[4900]
4. The regulation and enforcement of fire safety in care homes in Scotland has undergone substantial changes since Mr Reid carried out the risk assessment at Rosepark. Care homes are now inspected by FRS inspectors. The Inquiry heard evidence that care homes in Strathclyde are visited at least once a year and that such inspections include consideration of risk assessments.[4901] Inspectors from the eight Scottish FRSs receive training which covers fire risk assessment. Indeed, such training has been provided personally by Colin Todd.[4902] Under the current regime, significant shortcomings in risk assessments should be identified by audit.
5. It is also worth noting that the sector specific guidance, Practical Fire Safety for Care Homes, contains a substantial chapter explaining what a fire safety risk assessment is and describing how it should be carried out.[4903]
6. The Crown Submissions suggest that "in the specific context of fire risk assessments of residential care homes, there may be a case for a more prescriptive approach to be taken to the question of the qualification of persons who are engaged by duty holders to assist."[4904] As was indicated to the Court in the course of the Inquiry, SM do not support changes to legislation to this effect. Colin Todd confirmed in evidence that the United Kingdom government has made it clear that it does not intend to change legislation in order to make the use of registered or accredited persons compulsory.[4905] On the other hand, SM do recognise the potential benefits of the alternative approach identified in the Crown Submissions of highlighting the benefits of using third party accreditation schemes.[4906]
7. A project sponsored by the Department for Communities and Local Government ("CLG") of the United Kingdom Government is developing a standard for competent fire risk assessors. It is anticipated that third party certification will be used to ensure that risk assessors meet this standard. When the CLG project is completed, the Scottish Government will consider what equivalent scheme will be appropriate for Scotland. Revisions will be made to the sector-specific guidance, Practical Fire Safety Guidance for Care Homes to make appropriate reference to the benefits of selecting fire risk assessors who have the appropriate accreditation.
8. As an interim measure, the Scottish Government has written guidance for inclusion on the FireLaw website.[4907] This will assist dutyholders with selection of external fire risk assessors. Existing assurance schemes described to the Inquiry by Coin Todd, will be signposted in this guidance.
9. In the final paragraph of this Chapter, the Crown notes the existence of third party certification schemes relating to providers of key protection schemes such as fire alarm systems. It was indicated to the Court in the course of the Inquiry, that SM would consider amendment of the sector-specific guidance to make users aware of the existence and benefits of third party certification schemes.[4908] SM have inserted guidance on the FireLaw website on the benefit of third party certification for products and services. Similar guidance will be incorporated into revised versions of the Scottish Government's sector-specific fire safety guides. Practical Fire Safety Guidance for Care Homes is scheduled for revision after the Sheriff Principal's determination in this Inquiry is issued.
Chapter 46(6) - Developments since the Rosepark fire
(C) The Fire(Scotland) Act 2005, its Regulations and its Consequences
The Crown states that "regulation and enforcement of fire safety in care homes at the time of the fire at Rosepark was fragmented."[4909] Statutory provision in relation to fire safety evolved slowly over many years and has fairly been described as being of a "piecemeal nature".[4910] The need for reform had been recognised by the then Scottish Executive prior to the Rosepark fire. The Inquiry heard evidence that the process leading to comprehensive reform of the system and the enactment of the Fire (Scotland) Act 2005 was underway prior to the fire.[4911]
2. The Crown states that:
"At the time of the Rosepark fire, the inspectors of the organisation charged with regulating fire safety in care homes did not have the experience to do so adequately. In respect of Rosepark, the organisation which did have that expertise, Strathclyde Fire and Rescue, was not inspecting care homes routinely."[4912]
3. Evidence at the Inquiry established that that was indeed the case in Strathclyde. Investigation of the position nationwide was beyond the scope of the Inquiry. However, such evidence as was heard on the subject indicated that, at least in some parts of the country, care homes were regularly inspected by the local FRSs.
Since the fire at Rosepark
4. With reference to the imminent change in the statutory arrangements for care home regulation, the Crown states that:
"early attention to placing on a formal footing of the relationship between SCSWIS and the Fire and Rescue Authorities, and how they are to operate together in the care service sphere, is not just desirable but essential.[4913]
5. SCSWIS, like the CC, will be a non-departmental public body at arms length from SM. SM have already identified the need for fresh Memoranda of Understanding between SCSWIS and the FRSs as one of the important issues to be formally addressed by the new body as soon as it takes up its functions in April. SM have drawn this issue to the attention of the SCSWIS shadow leadership team. As part of their responsibilities for ensuring the proper corporate governance, accountability and responsiveness of the bodies they sponsor, SM will ensure through regular review meetings, and by other means if appropriate, that SCSWIS takes matters forward promptly. SM will support SCSWIS as necessary in its dealings with the FRSs over the Memoranda of Understanding.
1. In the course of evidence to the Inquiry covering a wide range of subjects, Colin Todd spoke to the contents of a report entitled Suggested Recommendations for Consideration by the Inquiry.[4914]
2. SM have considerable respect for Mr Todd's experience and expertise and have engaged his services in the past. As was indicated to the Inquiry, his report had already been studied carefully by branches of the Scottish Government concerned with fire safety. While SM agree with a number of his recommendations and will implement them, others are not, at least at this stage, supported.
3. As Mr Todd acknowledged, there are topics within fire safety on which even well-qualified experts may take different views.[4915] He described the sector-specific guidance, Practical Fire Safety Guidance for Care Homes, as excellent. He was particularly complimentary about the extensive consultation process which had been undertaken.
4. A number of Mr Todd's proposed recommendations - for example, those relating to checking of records of testing and inspection of electrical installations and competence of fire risk assessors - are adopted in the Crown Submissions. SM's position on those matters is set out in the Scottish Ministers submissions. For the most part, however, the Crown has not invited the Court to make any particular findings in relation to Mr Todd's recommendations. In SM's respectful submission, the Crown is correct to take this approach. As Mr Todd acknowledged, those responsible for framing fire safety legislation and guidance must weigh a number of factors - including legislative policy, views of stakeholders, economic considerations and expert advice (which may represent a range of opinions) - before arriving at decisions.[4916]
5. SM set out below a summary of their position in relation to the various recommendations in Mr Todd's report. References in headings to section numbers are to sections, or chapters, of Mr Todd's report. Practical Fire Safety Guidance for Care Homes is referred to for convenience as the "CHG". As noted above, the CHG is scheduled for early revision after the determination in this Inquiry is issued.
Use of addressable fire alarm systems (Section 5)
6. SM will consider revising the CHG along the lines suggested subject to consulting on the matter of cost and related cost benefit.
Staffing numbers in care homes (Section 7)
7. The CHG addresses this issue under the heading "Emergency Fire Action Plan", particularly in paragraphs 80-84. SM do not support Mr Todd's suggestion of including in the CHG a benchmark on the minimum number of staff required to assist with evacuation. The omission of any benchmark numbers is not by way of oversight.
8. As Mr Todd readily acknowledged, this is a difficult issue. He accepted that, given the large number of permutations, it might be a reasonable exercise of judgment after a thorough consultation exercise to decide that the number of staff needed to evacuate a home will be unique to each individual care home and that number should be determined by the risk assessment.[4917]
Retrofitting of sprinkler systems (Section 8)
9. SM support the suggestion in paragraph 8.3.2 about giving recognition in the CHG to the potential for partial sprinkler protection.
10. As to the recommendation in paragraph 8.3.1, SM take the view that this is adequately addressed in paragraphs 218-221 of the CHG. Paragraph 219 states:
"An automatic life safety fire suppression system can be very effective in controlling a fire. It may limit the growth and extend the time taken for untenable conditions to develop outside the room involved in fire giving more time to evacuate residents ..."
Protected corridors (Section 9)
11. As was clarified in the course of Mr Todd's evidence[4918], the recommendation in paragraph 9.6.2 has been overtaken by events. An amendment to the Non-domestic Technical Handbook (Section 2: Fire, Annex 2.A) has been made as part of the Building (Scotland) (Amendment) Regulations 2010[4919] which came into force in October 2010.
Self-closing bedroom doors (Section 10)
12. As was indicated in the course of Mr Todd's evidence, SM support the recommendations in paragraphs 10.9.2 and 10.9.3 that the CHG be amended to include (i) reference to radio-linked hold-open devices and (ii) a recommendation that acoustically-linked hold open devices should not be used to hold open doors to staircases. A similar change to building standards has been made in the Non-domestic Technical Handbook (Section 2: Fire, Standard 2.1) as part of the Building (Scotland) (Amendment) Regulations 2010 which came into force in October 2010.
Use of staff alarm arrangements (section 12)
13. With reference to the recommendation in paragraph 12.3.1, SM will strengthen the advice in the CHG regarding night time. As to paragraph 12.3.2, SG will, as recommended by Mr Todd, consider whether the use of staff alarm arrangements in residential care homes during the day are acceptable.
14. In paragraph 14.2, Mr Todd states that in many organizations staff training and fire drills are something of a Cinderella area with only token compliance with legislative requirements to train staff. He clarified in evidence that he was not saying that was the position today in care homes in Scotland. He accepted that no one reading the CHG would have an excuse for treating fire safety training as a "Cinderella area". Paragraph 88 reads:
"The actions of staff are crucial to the safety of residents in care homes. It is essential that staff know what they have to do to safeguard themselves and others on the premises and to have an awareness of the importance of their actions. This includes risk reduction, maintenance of fire safety measures and action if there is a fire. Staff training and awareness of fire safety is of paramount importance in care homes."
15. SM do not support the suggestion in paragraph 14.3.1 (specifying minimum frequency and duration of training sessions). The principle underlying the current fire safety regime is one of risk assessment. The current thinking is that adequate and appropriate training is vital and, as such, should be uniquely targeted. Specifying minimum frequency and duration of training runs counter to that philosophy.
16. As to the suggested model fire safety training package (paragraph 14.3.2), the CHG is far from silent on the matter of what fire safety training should include.[4920] Going further than that and providing a training package is considered to run contrary to the principle of risk assessment and current thinking that training should be uniquely targeted.
Routine inspections (Section 15)
17. The suggestion (paragraph 15.3.2) that SM should consider using powers under the Fire (Scotland) Act 2005 ("the 2005 Act") to make regulations by amending the Fire Safety (Scotland) Regulations 2006 ("the 2006 Regulations") to make requirements for keeping of records is not supported. Regulation 10 of the 2006 Regulations imposes a legal obligation on a dutyholder to control, monitor and review fire safety measures and to keep records. Regulations 16 imposes a legal obligation on dutyholders to maintain premises and fire safety measures. Moreover, the CHG contains in paragraphs 103-111 quite detailed guidance on frequency of checks and maintenance and keeping of records.
18. The lessons to be learned from the Rosepark tragedy are matters for the Court to consider. However, one lesson that some might suggest could be drawn is that there was no shortage of paper records bearing upon health and safety. The problem was that some - including some important ones - were not worth much. There is a balance to be drawn, and policy judgments to make, about the usefulness of requiring more paperwork. In SM's considered opinion, this subject is already adequately covered by existing regulations and supporting guidance.
Plans for use by the fire & rescue service (Section 16)
19. SM do not support the recommendation (paragraph 16.3) that residential care homes above a specified size should keep available plans of the premises for use by the fire and rescue service. While it may indeed be very helpful for the fire service to have access to plans, SM do not consider that placing the onus on care homes is the best way of going about this.
20. Fire and Rescue Services have a duty under section 9(2)(d) of the 2005 Act to obtain information. There are likely to be issues around accuracy, suitability and interpretation of plans provided by a dutyholder without any control on quality. In SM's view, it would be preferable for FRSs to make or obtain the sort of plan that they need. If it were thought desirable for a back-up plan to be held on the premises, it might be that a copy of the plan could be provided by the FRS to be held there.
The principle of "care" (Section 17)
21. It is doubtful whether paragraph 17.3 amounts to a recommendation as such. In any event, paragraph 2 of the Introduction to the CHG provides:
"Fatalities have occurred in fires in premises providing residential care and this clearly demonstrates the serious risk fire poses to the occupants of these premises and the potential tragic consequences which may occur. This guide will assist owners, managers, care providers and staff to achieve a fire safe environment in their premises and will also assist in achieving compliance with fire safety law. Reducing the risk from fire is one of the most important and fundamental duties in a care home.
This passage strongly emphasises Mr Todd's point that fire safety should be regarded as an important - indeed "fundamental" - aspect of care.
Familiarisation visits (Section 19)
22. SM are opposed to the suggestion in paragraph 19.5.2 that the CHG be amended to recommend to owners of care homes that they be pro-active in inviting fire and rescue service crews for familiarisation visits. Section 9(2)(d) of the 2005 Act places a duty on fire and rescue authorities to obtain information required or likely to be required for extinguishing fires and protecting life and property. Section 27 gives the FRS power to enter premises at any reasonable time for the purpose of obtaining information needed for the carrying out of the their functions under sections 9, 10 or 11. Regulation 12(3)(c) of the 2006 Regulations 12(3)(c) places care home owners under a duty to arrange any necessary contacts with external emergency services.
23. In SM's view, this matter is already adequately covered. Furthermore, this is a compliance matter for the FRS to be addressed by them in terms of assessment of risk and allocation of resources. Imposing part of this responsibility on care home owners risks confusing matters.
Competence of fire risk assessors (Section 20)
24. SM's submissions in relation to assurance as to the competence of fire risk assessors are set out in Chapter 46(5), above.
25. SM do not support the suggestion (paragraph 20.18.6) of amending the sector-specific guidance to provide a basic framework for a fire risk assessment. They consider that suitable guidance already exists. The CHG contain a full chapter on Fire Safety Risk Assessment including a lengthy section under the heading "How is a Fire Safety Risk Assessment Carried Out?"
26. SM do not support the suggestion (paragraph 20.18.7) that the sector-specific guidance be amended to recommend that risk assessments be reviewed at periods not exceeding 12 months. The CHG contains advice about reviewing risk assessments. Specification of any particular frequency is bound to be arbitrary. In any event, under the existing regime risk assessments are likely to be reviewed every 12 months by FRS inspectors.
Documentation of information on fire strategy (Section 21)
27. As was confirmed in the course of Mr Todd's evidence,[4921] the suggestion (paragraph 21.5.1) that the Building (Scotland) Regulations 2004 be amended to require provision of information on fire safety measures to a duty holder on completion of a building project is under active consideration by SM. Subject to a consultation exercise and regulatory impact assessment, appropriate provision, will likely be made under the Building (Procedure) (Scotland) Regulations 2004, as opposed to the Building Regulations. Further, the responsibility for providing the information is likely to be placed on the owner (who may or may not be the duty holder) and, if approved by Scottish Ministers, will be brought into force as soon as the legislative process allows.
SUBMISSIONS
for
SCOTTISH MINISTERS
re
FIRE AT ROSEPARK NURSING HOME: FATAL ACCIDENT INQUIRY
Ref: DM/CMM/SCO330.0014
Dundas & Wilson CS LLP
Saltire Court
20 Castle Street
Edinburgh, EH1 2EN
CMC/ST/AXA3/226
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY AT HAMILTON
RESPONSE TO CROWN SUBMISSION
ON BEHALF OF GEORGE MUIR
i.c.
FATAL ACCIDENT INQUIRY
INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
CHAPTER 28 (previously Chapter 23) - The events of 30 - 31 January 2004
In paragraph 82 it is narrated that Miss Carlyle reported to the police that Ms Queen had mentioned zone number 3. (Yvonne Carlyle, 27.11.2009 am. )
In paragraph 91 it is narrated that Ms Queen tried to identify which zone was indicated. She accepted as accurate her statement to the police on 31 January 2004 that zone 3 was showing on the panel. (Isobel Queen, 2.12.2009 am)
In paragraph 102 it is narrated that Ms Queen accepted as truthful her account to the police, recorded in her statement of 2 February 2004, that when she looked at the panel three red dots were flashing above zone 3. In her statement to the police on the morning of the fire, Ms Queen also stated that the fire panel had indicated zone 3 (Isobel Queen 2.12.2009 am).
In paragraph 107 it is narrated Ms Queen accepted as truthful her statement to the police on 2 February 2004 that the alarm went off again indicating zone 2 (Isobel Queen 2/12/09 pm).
In paragraph 171 it is narrated that by reference to her police statement of 31 January 2004, Mrs Richmond accepted that she had said that zone 3 was indicated on the panel (Irene Richmond 1/12/2009 am)
In paragraph 110 it is narrated that the existence of a new panel, coupled with the old zone card, created the potential for confusion. Mr Michael Gray concluded that (i) the arrangement and layout of the fire panel at Rosepark on 31 January2004 did not adequately support staff in identifying the correct zone (Michael Gray 21/4/10 am )
In the light of the excerpts of the evidence narrated above however it is apparent there was no such confusion in identifying that the panel had firstly indicated fire at zone 3 and thereafter at zone 2. It is submitted that the fire panel clearly indicated the relevant zones. Any confusion arose from the interpretation of that information and no further submission is made on that point.
With reference to the adjusted response on behalf of Ms Meaney in relation to Crown Chapter 19 where it is disputed on behalf of Ms Meaney that Mr Muir told Ms Meaney there would be a test of the fire alarm it is submitted that the Crown's position should be preferred. Mr Muir was clear in his evidence, both in examination in chief and in cross examination, as when he was asked to describe the elements of the test including testing of the sounders. (George Muir 18 January 2010 pm and , 20 January 2010 am). The suggestion therefore on behalf of Ms Meaney that the system may have been tested set to silent mode is contrary to the evidence, was not put to Mr Muir and should be discounted.
The Interested Party has no comment to make on the remainder of the Crown's Submissions, the Submissions of the other interested parties or the Proposed Determinations.
Christine McMenamin
Solicitor
February 2011
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY AT HAMILTON
SUBMISSIONS
(adjusted 16th February 2011)
for
ALEXANDER ROSS, INTERESTED PARTY
in the matter of
FATAL ACCIDENT INQUIRY
INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
INTRODUCTION
The approach adopted in these submissions is to identify those areas within the Crown submissions in relation to which any point of distinction or amplification is offered.
In addition, areas are identified where the Crown submission is contested.
Otherwise it can be taken that the Crown submission is not challenged, other than to the extent reflected in these submissions.
CONTENTS
The numbering of these submissions has endeavoured to follow that of the Crown.
Accordingly the contents comprise as follows
Chapter 6. Construction of Rosepark Care Home
Chapter 7. Registration
Chapter 8. The Ventilation System
Chapter 10. The Washing Machines
Chapter 11. The Electrical Installation
Chapter 12. Maintenance of the Electrical Installation.
Chapter 43 (formerly 37). The Cause of the Fire
Chapter 44(1) (formerly Chapter 38(1)). Reasonable Precautions - Cable Protection.
Chapter 44(2) (formerly Chapter 38(2)). Reasonable Precautions - Inspection and Testing of the Electrical Installation.
Chapter 45 (1) (formerly Chapter 39 (1)). Defects in Systems of Work Inspection and Testing of the Electrical Sytem.
Chapter 6. Construction of Rosepark Care Home
Para. 18
In his evidence, Mr. Spencely made it clear that the design of the ventilation system was a potentially complex matter. He indicated that it would have to be undertaken by someone with specialist knowledge of such matters. In his opinion such matters were beyond the ordinary competence of an Architect. [Mr. Spencely; 23/7/10 am p36 - 44]
"...typically the ... this drawing would be handed on either to a consulting mechanical, mechanical engineer or ..."
The reference to a "competent ventilation contractor" has to be viewed in that context. He is referring to someone with specialist design skills at or about the level of a consulting mechanical engineer. [see also William Dickie 14/01/10 am p103 - 104]
Para. 24.
It is submitted that additional paragraphs be added as follows
24A
George Harvie (GH) was a director and the main shareholder of Star Electrical Services (Strathclyde) Limited (Star Electrical). At Rosepark GH secured the engagement of Star Electrical to undertake works by way of agreement with Mr. Balmer. Whilst his company were to undertake those works he did not agree or require a detailed specification of the works to be undertaken. [GH 2/2/10 am; p91]
24B
The number of electricians employed or engaged by Star Electrical varied from time to time. That depended on the amount of work they had ongoing at any one time. The staff were comprised of direct employees and apprentices. In addition, labourers were hired and electricians obtained through an agency when needed. Time sheets would not be completed by agency electricians or labourers. [GH 2/2/10 am; p96 -99; Alex Ross 26/1/10 pm; AR 28/1/10, 53,54]. GH would decide how many men would be assigned to a particular job on a working day. GH recruited additional men when they were required and assigned work for them to do. [GH 2/2/10 am; p99 -100]
24C
Mr. Ross was an electrician employed by Star Electrical. He was paid as an electrician and not as a chargehand [AR 28/1/10pm, page 57] AR was instructed when to attend the site and when not (AR 26/1/10 pm page 47). In the event that additional staff were brought on site that was at the instance and discretion of GH. [AR 28/1/10pm, page 59]
Para 31
It is submitted that the evidence of Mr. Ross on this point is that he cannot recall raising the issue with Mr. Harvie although he thinks that he expressed surprise to those working with him at the time. Ultimately his position was, "I felt it really wasnae our, our job but you just have to do what you're told." [AR 27/1/10 am; p41]
Para 43.4
Mr. Harvie did not, when pressed, maintain that he had instructed Mr. Ross to carry out electrical testing. His evidence regarding what he maintained was a practice was based upon what he said were the duties of a chargehand electrician. Mr. Ross was not a chargehand electrician. His evidence was that he was not instructed to undertake the Electrical Testing.
Para 46
Certificate of Compliance of Electrical Installation dated 14th January 1992 was signed by George Harvie. He was the owner of Star Electrical Services (Strathclyde) Limited and it was his company that was being remunerated for the work carried out. In order to properly execute that certificate it was his responsibility to satisfy himself in relation to the matters mentioned there at that time. Had he done so he would have become aware that no electrical testing had been carried out at that time.
Para 48
It is submitted that the following sentence should be added to the end of paragraph 48,
"It was not prepared by Alexander Ross".
Para 55
It is submitted that the following should be added to the end of paragraph 55
"Had an inspection been undertaken by the Architect it would have been readily apparent that fire dampers had not been fitted. [William Dickie 14/01/10 am p68 - 71; 94 - 95] That would be so, even if such inspection had been undertaken on a sample basis. [William Dickie; 14/01/10 am p93 - 94]
William Dickie did not inspect the building prior to making an application for completion certificate. The final inspection undertaken by Building Control did not include a specific inspection to see whether fire dampers had been fitted. [Hugh Gibb 4th Feb 2010 am; p123; 141, 142]
In considering the scope of his final inspection, Mr. Gibb relied on the fact that the application for completion certificate was signed by an Architect. [Hugh Gibb 4th Feb 2010 am; p147]
Chapter 7 Registration
It is respectfully submitted that a new paragraph 7A - E be added as follows
"7A. At the time of his inspection the premises had not been "designated" by the Secretary of State in terms of the Fire Precautions Act 1971 (as amended) and accordingly did not fall within the statutory scheme.
Care home premises might well have been so designated in respect that in terms of Section 1(2) of the 1971 Act [PRODUCTION 1832] uses included "(a) sleeping accommodation" and "(b) care" and "(f) use as a place of work"
7 B. However, in dealing with the application for a "goodwill" letter the scope of consideration and inspection was intended to correlate with the statutory procedure.
Evidence of Thomas MacNeilly 26th January 2010 (am) page 30, 31.
"Well I think we've already established that the process is there. It's designed to protect the users of the building. - That's correct.
Right, and what my question to you is the scope of your consideration and inspection was intended to correlate with the statutory procedure. - Yes.
Okay, because you have to have some sort of objective or reference point to undertake your work. - That's correct.
Yes. So in terms of the work you did, or at least the work you were asked to do, what you're setting out to do is give the health board something equivalent to the statutory fire certificate. - Yes."
The purpose of going through the process was to ensure that users of the building had adequate protection in the event of a fire [Thomas MacNeilly 26th January 2010 (am) page 14]
7 C The statutory procedure requires
5(1) An application is to be made
5(2) The fire authority have the power to require the applicant to furnish them with such plans of the premises as they may specify
5(3) an inspection of the building must be undertaken
"5(3) Where an application for a fire certificate with respect to any premises has been duly made and all such plans (if any) as are required to be furnished under subsection (2) above in connection with it have been duly furnished, it shall be the duty of the fire authority [to consider whether or not, in the case of premises which qualify for exemption under section 5A of this Act, to grant exemption and, if they do not grant it, it shall be their duty]3 to cause to be carried out an inspection of the relevant building (including any part of it which consists of premises to which any exemption conferred by or under this Act applies), and if the fire authority are satisfied as regards any use of the premises which is specified in the application that-
(a) the means of escape in case of fire which the premises are provided; and
(b) the means (other than means for fighting fire) with which the relevant building is provided for securing that the means of escape with which the premises are provided can be safely and effectively used at all material times; and
(c) the means for fighting fire (whether in the premises or affecting the means of escape) with which the relevant building is provided [for use in case of fire by persons in the building]4, and
(d) the means with which the relevant building is provided for giving to persons in the premises warning in case of fire,
are such as may reasonably be required in the circumstances of the case in connection with that use of the premises, the authority shall issue a certificate covering that use."
7 D. The provision of fire dampers, in terms of the 1971 Act, is one of the matters that ought to have been subject to inspection either as part of the means of escape or the means for securing the means of escape with which the ...building is provided. [Thomas MacNeilly 26th January 2010 (am) page 26, 27, 28]
7 E Mr. MacNeilly did not undertake an inspection in respect of the provision of fire dampers. His approach to the matter was materially influenced by his belief that, by the time he came to do his job, the building would have been checked by the architect, by building control, by the installer (of the ventilation system) and by the person running the site. [Thomas MacNeilly 26th January 2010 (am) page 32; 42]
And to add as a proposed determination, following on from the proposed determination entitled "Fire Dampers [Chapter 44 (3)(F) (formerly Chapter 38 (3)(f))]",
"Inspection Prior to Issue of Goodwill Letter"
1. It would have been a reasonable precaution to check for the presence of fire dampers as part of the process of inspection by the Fire Brigade prior to the issue of a goodwill letter.
2. Had this precaution been taken this might have avoided some of the deaths in corridor 3.
Chapter 8 The Ventilation System
It is respectfully submitted that new paragraph 12 A be added as follows,
"12 A. Material defects in the system as constructed and in workmanship were obvious upon inspection after the fire. In particular, (1) the absence of fire dampers (2) gaps left were duct work passed through openings in walls and ceilings (3) long runs of flexible ducting." [21/12/09 am - Hamish Brodie, page 33]. Such defects would have been obvious had an inspection of the ventilation system been undertaken after completion by an appropriately skilled construction professional."
Chapter 10. The Washing Machines
Para 13
It is respectfully submitted, and this may not be in dispute, that the nature and duration of use of the washing machines cannot, on the evidence, be assessed with any real precision.
Some caution has to be exercised before relying upon the evidence of Linda Anderson. [10th March 2010 (pm)]
In evidence in chief, she appeared to be quite confused as to the configuration of electrical sockets. [10th March 2010 (pm) p56 - 62]
In cross examination it emerged that her evidence regarding the use of the machines was based upon her experience post fire. It appeared that her timings regarding the duration of the 40 and 60 degree programmes were at odds with those recorded by the experts under testing. [10th March 2010 (pm) p77]
She also indicated that her evidence was based upon use of machines provided post fire which were different to those in operation at the time. She indicated that she was "guessing on the time" [10th March 2010 (pm) p78]
It was Sheila Lees position that, on the backshift, she routinely used the 60 degrees setting. [18/03/2010 pm; page 58]
Tracey Farrer was a care assistant and had limited involvement with laundry. She was involved with the collection of laundry on the backshift. Looking at her evidence in the round it appears that on occasions some or all of that laundry was put on to wash. On other occasions it may be left in the machines to be washed in the morning. In so far as she has a limited memory of what she actually did, if she activated the washing machine she would have been liable to use the 40 degree wash. Even when she gave a statement to the police on 20th February 2004 she wasn't entirely clear in her recollection. [24th November 2009 (am); page 151]
Chapter 11 The Electrical Installation
Para 10
The generality of the proposition that a fire might be started if splatter with sufficient energy falls on suitable combustible material is not contested. However, the contingencies inherent in that proposition are of considerable importance in the present case, that is, that there has to be sufficient energy within the splatter and it has to fall on suitable combustible material. Reference is made to response to submissions on causation [Chapter 43 (formerly Chapter 37).]
Para 26
The edge of the knockout is a contentious matter and is dealt with in these submissions at paragraph 3.5 of submission on causation. [Chapter 43]
Para 37
It is respectfully submitted that it should not be concluded, on the evidence, that Alec Ross installed the second switch.
37.1 There is no first hand evidence of this work being undertaken. There is no first hand evidence of this work having been instructed.
37.2 It is respectfully submitted that the evidence of Joseph Clark is wholly unreliable and should be disregarded.
37.3 The concession by Mr. Ross has to be read in the context in which it was made. It originated within a statement dated 13th February 2004. At that time a verbal description had been given to Mr. Ross. He didn't remember doing this job but accepted that it was the kind of job he could have done. (27th January 2010(pm); p29; 31)
Photograph 857A was put to him in witness box and he accepted that it was the kind of job that he could have done. He did not accept that he did that job. Ultimately, it is submitted that his evidence is that that he had no recollection of doing that job.
37.4 Given the manner in which this connection was formed it is submitted that it is unlikely to have been undertaken by a qualified and experienced electrician. There are a number of other people who might have done so - in particular Mr. Balmer, Mr. Clark or Mr. McRae. Mr. Balmer may well have instructed a third party to carry out this work such as a "general handyman" referred to in his list of telephone numbers on the maintenance log - Production 246 at page 5.
Para 38
Mr. Ross was clear, when asked about this matter at an early stage, that he knew nothing about the Merlin Gerin circuit breaker. This was recorded in a statement dated 13th May 2004 arising out of an interview with the police and with Mr Madden from the Health and Safety Executive. This was further spoken to in evidence 28th January 2010 pm p70, 71.
It is submitted that the selection of the 50 amp Merlin Gerin circuit breaker and its application within a board of different manufacture is not likely to have been undertaken by a qualified and experienced electrician.
A fortiori, it is unlikely to have been the work of Mr. Ross given that no issue has been raised with the cable or selection of circuit breaker of any other circuit within the distribution board in question, or indeed, any of the other two distribution boards within the premises.
Mr. Ross is also known to have undertaken the electrical wiring at Croftbank Nursing Home and no issue at all has been raised regarding the quality of work undertaken there.
Para 56
Work undertaken by Mr. McRae resulted in a maximum current drawn by the machines of 31 amps and then only if, and to the extent that, the heating sequence of each machine coincided.
Paragraphs 46 to 59 are dealt within the response to Chapter 43.
Chapter 12 Maintenance of the Electrical Installation
Para. 10
It is submitted that it should not be concluded that Mr. Ross was the only electrician, or person, Rosepark called upon to do ordinary electrical work (as opposed to work relating to alarm systems) until Mr. Muir started to do work at Rosepark.
It is submitted that the evidence of Mr. Balmer must be treated with considerable caution. In particular, it is submitted that one cannot discount the possibility of Mr. Balmer having instructed others to undertake work on an ad hoc basis (for example Mr. Clark, Mr McRae or a "general handyman" referred to in his list of telephone numbers on the maintenance log - Production 246 at page 5) or of having undertaken such work himself.
Mr. Ross would not be in a position to know what was actually happening at the premises on a day to day basis. He had a full time job elsewhere and would attend there when asked to do so.
Para 16.
On the evidence, Mr Ross undertook an inspection of limited scope on an informal basis. It is agreed that, in the event of conflict, Mr. Ross' evidence should be preferred to Mr. Balmer's.
Para 25
20.1 If Mr. Balmer is not believed in his account that there was a telephone call with Mr. Ross then there is no other source of evidence to advance the proposition that this letter was ever discussed at all with Mr. Ross. The court should not readily accept the uncorroborated account of Mr. Balmer on this matter.
Para 27
If Mr. Balmer is not believed in his account that there was a telephone call with Mr. Ross then there is no other source of evidence to advance the proposition that this letter was ever discussed at all with Mr. Ross. The court should not readily accept the uncorroborated account of Mr. Balmer on this matter.
Chapter 43. The Cause of the Fire.
It is respectfully submitted that whilst there are three or more hypotheses in relation to the cause of the fire, there are significant evidential problems in relation to the proof of each of those. It is submitted that, for different reasons, each hypothesis is improbable.
If that is so, then, for the reasons set out by the Crown in their citation of authority, it would be an erroneous approach for the court to feel compelled to choose what might be said to be the least improbable theory.
In those circumstances, it respectfully submitted that the appropriate course would be to find that the cause of the fire is not proved.
THE FIRST HYPOTHESIS
ELECTRICAL ARCING CAUSED BY LIVE WIRE (CABLE V) TO CASING FAULT.
1. Electrical arcing - cause or effect?
Electrical arcing can occur as a result of the effects of a fire [Dr. Lygate Report - Paragraph 9; Dr. Ivan Vince 11/08/2010am p100/101]
In his report dated 12th July 2006, [PROD 1278] at paragraph 3.5.2 . Mr Madden stated,
"Despite the foregoing discussion, it must be appreciated that the insulation failure and consequential earth fault may well have occurred as a result of the fire. The external fire tests at Buxton demonstrated that such a fire destroys basic insulation, as shown in Photograph 26. This would have led to the earth fault occurring and the Merlin Gerin circuit breaker tripping."
In fact the presence of ionised gases generated in the course of a fire is liable to encourage the incidence of electrical arcing. [Dr. Jagger PROD 1406 at Paragraph 7, "DISCUSSION"]
2. Can the conclusion be drawn, on the evidence, that this arcing event preceded the fire?
2.1 In terms of his investigation and report, Dr. Jagger thought that the arcing event at the live wire to casing was more likely to have been as a result of the fire (as opposed to the cause of the fire).
The objective of his report was to investigate the possible involvement of the electrical distribution board in the start and early stages of the fire.
"Consequently, although it cannot be ruled out that one of these electrical faults could have occurred prior to the fire it more likely (sic) that the observed damage was due to arcing as a result of the fire." [PROD 1406 at 7 "DISCUSSION"]
And in evidence
Yeah, okay. And you say, 'Consequently, although it cannot be ruled out that one of these electrical faults could have occurred prior to the fire it ...' and I think it should say '... it is more likely that the observed damage was due to arcing as a result of the fire.' Yes.
And that is an opinion that you have arrived at, based upon experiments that you have undertaken, your professional qualifications and experience as a scientist? - Yes. [Dr. Jagger 22/03/2010 am, p126].
2.2 Dr. Joel prepared a report dated October 2004 [PRODUCTION 1284]. At Part 3 of the report ("DISCUSSION") he states,
"This examination has revealed that there were quite definite indications of electrical arcing induced damage in the partially severed 6 millimetre squared live conductor which passed through the upper right cable entry hole in the back to the distribution box and there were associated areas of damage and transferred material on the lower edge of the cable entry hole. This damage indicated that electrical arcing had taken place at some time in this locality, however, nothing has been found to suggest whether this arcing occurred before or during the fire. Given that any insulation which might have prevented arcing taking place had been consumed in the fire, it is eminently possible the arcing could have occurred during the fire, as a result of the loss of insulation. However, without any indication as to the state of the insulation before the fire and given the lack of anything to the contrary, the possibility that the arcing occurred before the fire cannot be ruled out. The experimental reproduction of the arcing fault showed that the severity of damage observed could have been produced by the electrical currents present in the distribution board."
And then,
"In summary, this examination has found no damage which could not have arisen during the fire and it has found nothing which could be categorically connected with the ignition of the fire."
2.3 Dr. Lygate is an extremely experienced and well qualified fire investigator.
He was clearly of the opinion that the arcing at cable V occurred as a result of the effects of the fire.
Right. But at 9.1.4 you set out what is the crystallisation of at least one part of your disagreement, that 'I disagree that the arcing of Cable V caused the fire. In my opinion, the arcing at Cable V occurred as a result of the effects of the fire.' Do you see that? - Yes.
And do you still adhere to that position today? - I do.
[10th August 2010 (am) Page 41/42]
Dr. Lygate felt that, on the evidence, one could not confidently assert that Cable V, were it not subject to arcing prior to the fire, would necessarily have been de-energised by virtue of a fire attack causing the MCB's to operate.
"As I understand the position that Mr Mortimore has taken, it is that the fire affects the front panel of the distribution board, causing the breakers to operate, thereby de-energising Cable V" [Page 41/42 10th August 2010 (am)]
"There is witness evidence, however, that the circuits were energised in the course of the fire, and that is the evidence given by Agnes Crawford, who is the daughter of Robina Burns. Robina Burns, you may recall, was the occupant of Room 10. As I understand her daughter's evidence, it was that Mrs Burns awoke, found that her bedside light which was normally on, was off, she got up and turned the lights on and they came on. She then opens the door and describes flames spreading at floor level, closes the door, goes to the window, opens it some more, sits down, and the next thing she recalls is waking up in Glasgow Royal Infirmary. Now, Mrs Burns' evidence is potentially important because it indicates that the circuit breaker which supplied the lights had not operated at the point in time she opened the door. You can reach a, I have reached an opinion as to the point in the fire that Mrs Burns opened the door, by her description of the fire, and that is, what she's describing is a fire that is hunting for oxygen, hence it is at low level, and by comparing what she said to the fire tests that have been done, it must have been some five minutes in to the start of flaming combustion in the cupboard. She also refers to a popping noise, which might be an electric light fitting exploding at ceiling level." [Page 49/50 10th August 2010 (am)]
Dr. Lygate also contested the proposition, advanced by Mr. Mortimore, that heat and fire would necessarily attack the distribution board from below, and therefore trigger the MCB's prior to damaging the cables located at the Cable V knockout.
THE WITNESS: When, when a fire starts in a corner, what tends to happen is that the flames spread up the corner and it's because of the mutual radiation that there is in the internal corner. So fires will, if you start a fire on a wall, when it spreads to the corner, it spreads at a faster rate up the corner, 'til it reaches the ceiling and the products of combustion form a layer at the ceiling, which then builds in both temperature and depth. What that means is that the right hand side of the distribution board was affected more quickly by the hot gases rising from the fire at the floor of the cupboard than was the face of the distribution board, and that point is illustrated in the videos of the fire tests conducted at the HSL in Buxton. [Page 51/52 10th August 2010 (am)]
2.4 Mr. Mortimore also accepted that there was a gap between the rear of the distribution board and the surface upon which it was mounted and that said gap was capable of channeling heat and gases toward the Cable V knockout area although he did not accept that heat or fire gases would become more intensified or concentrated as a result of that process. [18th March 2010 (am) 11]
It was also accepted by Mr. Mortimore
- There was greater fire damage to the Cable V knockout area than at the central area of the board.[ 18th March 2010 (am), page 21]
- That the fan controller switch may have been attacked by fire then cease to function and as a result, turn the fan off [18th March 2010 (am), page 24] He would be surprised if that was the case however, accepted that the plastics (of the fan controller) were not researched in detail and fire tests were not undertaken on the ventilation controllers.[ 18th March 2010 (am), page 25]
2.5 It was also evident from the work of Dr. Jagger, [Report 8th August 2006; PRODUCTION 1406] that, when subjected to direct attack by flame, the MCB's took some time to respond. In any event, he indicated that the MCB's of different manufacture did not respond at the same time.
"3.6 FLAME IMPINGEMENT ON MCB'S
To assess the fire behaviour of the two different mcb types, an ad hoc test was arranged whereby the front faces of the two types of mcb were exposed to a fire from burning two British Standard No. 7 wood cribs
One MEM and one Merlin Gerin breaker were arranged side by side ...
During the course of the test, the MEM breaker tripped out first, followed by the Merlin Gerin breaker."
Mr. Mortimore also agreed that the MCB's may respond differently, in terms of the time taken to trigger, as a result of fire attack [18th March 2010 (am) p43]
3. A number of contingencies are required in order for cable V to come into contact with the casing.
3.1 That there was no grommet strip, or equivalent, around the cable V cut out.
It is conceded that, on the balance of probabilities, that had a grommet strip or equivalent been fitted, it is likely that there would have been at least some residue or protection mark. Accordingly it is conceded that it is open to the court to find that no grommet strip or equivalent was in place there at the time of the fire.
These matters were spoken to in evidence by Dr. Ivan Vince.
He indicated that the material is capable of burning to utter destruction.
"Given sufficient time, sufficient temperature and sufficient aeration, there's no reason why the PVC shouldn't disappear altogether." [Dr.Vince 11/08/2010 am, page 65]
However, deficiency in any of these would be likely to result in some charred remains which could be adhere to the original location of the grommet. [Dr.Vince 11/08/2010 am, page 65]
With reference to photograph 1037Y, cables centrally located in the distribution board substantially retained their outer coating of PVC, or in any event, were not burnt to destruction [67/68]
Accordingly, Dr. Vince indicated that it looked unlikely that grommet would have been burnt away completely in that situation and the cables left in that condition. [67/68]
Dr. Vince could not speak to the issue of fire protection marks and would defer on such issue to an experienced fire investigator. (p66) The weight of opinion from experienced fire investigators [Dr. Lygate; Mr. Mortimore] is that had there been a grommet there then they would have expected to see either some residue or protection marks.
3.2 That the outer sheathing of cable V had been cut back to a point external to the distribution board.
1. The cables were examined after the fire. They had all been subjected to fire damage. A report on that damage was prepared by Dr. Joel and spoken to in evidence by him. [PRODUCTION 1284]
"2.1 DISTRIBUTION BOARD
...As received at the laboratory this item still had much of its internal, and external, wiring still in place. The internal wiring had lost the majority of its insulation as a result of the fire to which it had been subjected, however, there were sections of the wiring in the central volume of the board which still had much of their insulation in place. Much of this remaining insulation was charred or sooted, but in some places, the colour of the insulating plastic could still be seen. Much of the external wiring still had its insulation in place. As I understand, the external wiring had been enclosed in the wall space behind the distribution board and therefore would have been protected from the worst of the heating effects. The insulation on the external wires became progressively more damaged the closer it was to the distribution board back plate and the cable entry holes through it."
2. The photographs taken during the process of dismantling and examining the board, it is respectfully submitted, tend to suggest that cable V was not different from the other cables which passed through the cable V knock out.
The photographs are productions 942N compared to 875D, taken together with 875A, 875B, 875 C and 875F
3. It is submitted that such photographs illustrate a demarcation between the condition of the cables internal to the distribution board, in which any pvc insulating material was substantially destroyed by fire, and the cables external to the board which had been subjected to a fire attack but where there was charred and blackened insulating material adhering to the metal wire. Many of the cables had clumped together as a result of the fire damage.
4. It was conceded that those photographs do not illustrate the proposition that cable V was stripped back differently from the others.
Yes. Um, and the view that, um, you're expressing in the document that the Advocate, er, Depute referred you to, which is one of your letters, um, I mean, that's, it's kind of a, it's a different point, is it not, to, are you not now seeking to distinguish Cable V as being different, er, from the rest? - Well, that was my understanding, at the time that I was looking at it, although I accept, looking at these photographs, it's difficult actually to tell that from the photographs. [Mr. Mortimore 02/08/2010 pm, p113]
5. The process of dismantling the distribution board and exposing the inner cores for the purposes of examination and photographs, has, at least to some extent disturbed the remaining charred and fire damaged insulation.
This was raised with Mr. Mortimore [02/08/2010 pm, p89]
And, significantly, very much of the burnt and charred wiring at the top of the distribution board has just disappeared? - Yes, but, obviously, it's a debateable point as to how much was actually physically removed and how much fell off.
Yes, yes, I mean, I accept that but is this proposition correct that the process of examination, inspection etc and, indeed, moving the board, has been effective in dislodging a great deal of the burnt and charred insulation? - Yes, because one of the things we would have done is actually checked through ... in fact, one of the things I did do, is to check through the various cores and look for signs of arcing activity and one cannot do that without removing the insulation.
6. Mr. Mortimore accepted that the process of examination may have involved removing cable V from a clump of cables and that process may have involved further disturbance of the insulation. [02/08/2010 pm, p100 - 106]
7. In his report dated 1st August 2006 [PRODUCTION 1454 AT 3.1.29] he stated,
"There were not any residues of grommets on the edge of the subject cable entry hole. It appeared from the marked contrast between the cable sheathing materials that had survived to the rear of the distribution board and the absence of any significant remains of cable insulating materials within the distribution board, as if the cable sheathing had been cut back such that it did not extend into the distribution board."
8. The matter was explored in evidence.
Well, certainly at the time I wrote that I was referring to the way that the insulation and sheathing material just suddenly stopped. If one looks at the photograph which is on the screen, one can clearly see that it's almost as if it's like cut at 90°, it doesn't taper away or anything, it's just a distinct stop. So yes, to that extent, I was relying on the demarcation. [Mr. Mortimore 02/08/2010 pm, p112/113]
Yes. Um, and the view that, um, you're expressing in the document that the Advocate, er, Depute referred you to, which is one of your letters, um, I mean, that's, it's kind of a, it's a different point, is it not, to, are you not now seeking to distinguish Cable V as being different, er, from the rest? - Well, that was my understanding, at the time that I was looking at it, although I accept, looking at these photographs, it's difficult actually to tell that from the photographs. [02/08/2010 pm, p114]
I could see what the pattern was and the way it just suddenly stopped short, so to me that was consistent with the cable having been, had the insulation and sheathing material cut back, or certainly the sheathing to ...
SHERIFF PRINCIPAL LOCKHART: Just a minute. I saw it stopped short. To me that was consistent with the ...
THE WITNESS: Sheathing material being cut back.
Cross-examination by MR MARNEY (continued): And would you accept it might not be the only explanation? - Yes, its, insulation and sheath can be burnt off. It would be unusual for it to suddenly stop at such a clear line, but I would accept it's a, a possibility. [02/08/2010 pm, p115]
9. If the proposition is correct that arcing can be caused by fire, as vouched by experts above, then inevitably that would involve the metal core of the cable coming into contact with the edge of the knockout.
10. Certain propositions appear uncontroversial. In particular, the cable has been in a fire; any insulation surrounding it has been damaged as a result of that; it has been moved and the insulation has been disturbed with a view to illustrating the broken strands.
11. On the first occasion on which he gave evidence, Mr. Mortimore made certain concessions regarding this issue
"I mean, do you accept that the heat and fire there would have been of sufficient intensity to destroy the insulation of the cables passing through there? - Yes.
And on the basis of the physical evidence, do you not accept that that raises the possibility that cable V may have been fitted with an outer grey sheath which passed through the knock out? - I suppose one could not discount that possibility entirely (emphasis added) but comparing the damage to the insulation on cable V, with that to the other adjacent cables, cable V had more damage which would be consistent with it having less insulation.[18th March 2010 (am) p29]
And therefore on the basis of the physical evidence, do you not accept that that raises the possibility that cable V may have been fitted with an outer grey sheath which passed through the knock-out? - One could not discount that entirely. It also raises the possibility that none of them had a sheath.
Well, that's, that's the point, isn't it? Because ...
SHERIFF PRINCIPAL LOCKHART: Just a minute ...
Cross-examination by MR MARNEY (continued): One, one interpretation of what we're seeing there is that they all had a sheath and it's all been destroyed in the fire, that's one, one view of it. One possible view of it? - Yes. The only thing I would repeat is that there was a differential in how far the sheathing material had been burnt back and cable V had less sheathing material than the others. But, I accept, then there is a possibility that it's all been burnt back to a certain extent.[page 31/32; 18th March 2010]
12. There is no physical evidence of any other cable having been cut back external to the distribution board.
13. At the central area it is plain that the cables extended through the knockout with their outer sheath intact.
14. There is no suggestion of any other cable in Rosepark having been cut back in a similar manner despite those distribution boards having been subject to examination.
Well, that's exactly it, I mean, that's, that's, I'm coming to my point. We know that in the central area, the sheathing does go through, so it's a reasonable inference from that, is it not, that that's the way those cables were fitted? - I could see the logic of that, yes.
And if it's the same electrician that's fitting them, then that tends to suggest that he'd also fit the upper cables through the knock out holes as well? - One would expect so, yes.
Now, when one is looking for evidence which supports the hypothesis or doesn't support the hypothesis, I'm wondering in the issue of the cutting back of cable V, I'm wondering if consideration is given to examining the two other distribution boards in the home, to see how they had been dealt with in terms of cables passing through knock outs? - I understand that they were examined but they were not examined by me.
Right. So, you didn't undertake an examination to check whether any cables had been cut back in those distribution boards? - No, I did not.
And you've not been told that any cables were cut back in those distribution boards? - Not to the best of my recollection, no.[18th March 2010;p41/42]
14. Dr. Lygate in his evidence stated
Right. So after conducting that exercise where does that leave you in terms of that, this issue? - I'm ... I am not convinced from the photographic evidence that the sheath of, the outer sheath of Cable V was cut back to the extent that Mr Mortimore says it was cut back. But Mr Mortimore was the investigator who actually handled those cables, and recorded what he saw and I would defer to Mr Mortimore in that.
[10th August 2010 (am); p73]
15. It is respectfully submitted that there is no first hand evidence of the fitting of cable V nor the manner in which it was fitted. The evidence on this point is simply speculative as to the manner in which it might have been fitted.
16. Accordingly, it is submitted that, taking account of all of the aforesaid evidence, the court cannot conclude with any confidence that the external insulation of cable V was, as a matter fact, cut back beyond the entrance to the distribution board.
3.3 That the live (red) wire was damaged or abraded at the point of installation.
1. It is submitted that there is no direct evidence at all that the cable was damaged or abraded at the point of installation.
2. The evidence, at its highest, is simply speculative of the how the cable might have become so damaged or abraded when it was installed.
3. In any event, there is evidence that the insulating material is liable to be resistant to abrasion.
"Polyvinyl chloride is relatively resistant to the effects of abrasion or cutting" Mortimore Report 1454; para 4.6.5.
4. There is also evidence that, in setting out to deliberately damage the cable by way of abrasion, it was quite difficult to do.
Jagger Report 1406; page 35
5. Mr. Mortimore accepted that there was no physical evidence that there had been damage to the cable
Yes, I am seeking to draw this to a distinction, my Lord. Now, on the matter of damage to the cable, would you agree with me that that is simply a matter of hypothesis, there is no evidence at all to, that, no physical evidence that supports the proposition that red wire, sorry red coated wire was damaged at the point of insulation, eh, sorry at the point of installation. - That is correct, and I think I have actually stated that in the report that there was no residual physical evidence to indicate definitively that that was the case.
Okay.
[18th March 2010; am; p56]
6. There would had to have been damage to the cable for the hypothesis to work
In terms of your hypothesis, you would need to have damage to the cable for the hypothesis to work, is that a fair way of putting it? - Yes, it is a fair way of putting it.
[Mr. Mortimore 18th March 2010; am; p57]
3.4 That the inner core of cable V was pressed against the edge of the cable V knockout.
1. It is respectfully submitted that whilst experts may construct a hypothesis that this could have happened, there is no evidence that, as a matter of fact, this was the case.
2. Mr. Mortimore accepted that it is entirely possible that the cable was fully supported at the knockout area in which event the force exerted by the cable on the distribution board would be negligible. [18th March 2010 (am) 76/77 ]
3. He accepted that, as a matter of fact, there is no physical evidence that the cable was fully pressed up against the edge of the knockout [18th March 2010 (am) 79 ].
3.5 That the edge of the knockout was sharp and therefore led to the possibility of abrasion.
1. There has been no measurement of the thickness of the surface at the knockout with regard to the distribution board on question, or any other distribution board.
2. It is respectfully submitted that any opinions from the witness box on the relative sharpness of the distribution board in question are of limited value given the passage of time, the fire damage which has occurred and the rusting which has followed that fire damage over time.
3. In so far as a replica or duplicate board has been produced, again that has not been subject to any scientific testing or measurement in relation either to the thickness of the edge or the presence or otherwise of zinc or paint on the edge by way of protective coating.
4. Dr. Lygate when asked to comment on the issue stated
Yes. - His hypothesis demands that the, er, cable was rubbing against a sharp edge or a burr on the distribution board, and I've seen no evidence, er, that there was a sharp edge and a burr and I would have expected Dr Joel to comment upon that in his metallurgical report.
[10th August 2010 (am) p58/59]
3.6 That there would have been abrasive movement in the cable over time
1. Tests were commissioned by Mr. Madden in order to consider the hypothesis that there might be abrasion of the cable over time.
2. It is understood to be uncontroversial that the conditions under which the tests were undertaken did not replicate, or attempt to replicate, the actual conditions at Rosepark.
For example
1. A brass plate was used which was filed in order to create a sharper edge. [discussed in the evidence of Mr. Mortimore 18th March 2010 (am) 74]. The sharpness of that edge was not measured.
2. The cable was run horizontally. At Rosepark the cable ran substantially vertically from the attic space with a short horizontal run into the back of the board. [Mr. Mortimore 18th March 2010 (am) p76]
3. Weights were suspended from the ends of the horizontal cable in order to apply a force against the cable and against the sharpened brass. [Mr. Mortimore 18th March 2010 (am) 76]
4. At Rosepark, expansion and contraction of the cable is likely to have caused the vertical part of the cable to rise and fall in a vertical plain although it could cause some horizontal movement depending on where the pivot point for the cable was. [Mr. Mortimore 18th March 2010 (am) 77]. The more pronounced effect would be the rise and fall rather than the sawing motion produced in the tests. [Mr. Mortimore 18th March 2010 (am) 77].
5. The test was run with a current of 41 amps. In fact the maximum current which would be produced is 31 amps and then even only if both washing machines were in operation and the heating cycle of both coincided. It would be quite possible to have both machines running and for such coincidence not to occur. [Mr. Mortimore 18th March 2010 (am) 62]. In that event, one machine, for the duration only of the heating cycle, would run at 20 amps or so and the other, again only for the duration of the heating cycle, would run at 10 amps or so.
In terms of the test results the extent to which there might be movement of the cable depends, inter alia, on the amount of current passing.
Accordingly, it is respectfully submitted that the tests that were undertaken are of limited utility in the matter of proof of causation in the particular circumstances of Rosepark.
In any event, it is respectfully submitted that the tests undertaken are not apt to elevate a hypothesis into a probability.
3.7 That the arcing event occurred at a point in time when the cable was not energised and had not been energised for a number of hours.
1. This issue was considered by Dr. Lygate.
At 9.7.9 you set out what appears to be a question: "If this fire is associated with high current flowing in Cable V, why is it that the fire is discovered some seven hours after the washing machine is used? It seems much more likely that shorting of Cable V on the distribution board, which Mr Madden and Mr Mortimore say gives rise to the fire, would have occurred when the cable was actually loaded or very shortly afterwards, that is around 2100 hours." - Yes.
[10th August 2010 (am) p56/57]
Okay. In relation to 9.7.10, you say: "For these reasons, I remain sceptical about the mechanism Mr. Madden propounds as an explanation for the fire, namely the vibration and movement of the Cable V on the edge of the distribution board, resulting in arcing and ignition of the contents of the cupboard below the distribution board," is that correct? - That's correct.
And is that an opinion that you adhere to today? - It is.
[10th August 2010 (am) p57]
Again, what we have is a matter which is possible but no more than possible. Dr. Lygate, is sceptical.
2. In any event, it is not a matter which is proven to have occurred in this case. It is required for the purposes of the hypothesis but that is distinct from proof that this is what did occur, on the balance of probabilities, on this occasion.
3.8 That the arcing event produced a spark which was then able to ignite a solid
1. Dr. Jagger of the Health and Safety Laboratory, Buxton prepared a report in conjunction with D. R. Bennett and A M Nicol. The report is dated 8th August 2006 and is production 1406.
The objective of the report was to investigate the possible involvement of the electrical distribution board in the start and early stages of the fire.
A series of experimental tests were undertaken.
The test conditions were materially different to those which prevailed at Rosepark.
In the penultimate paragraph of Section 8 of the report [p47] it states
"Fire tests were performed under conditions designed to favour ignition of subject materials. Conditions more representative of those likely to have existed at the time of the incident will reduce the chances of producing an ignition."
In order to provide conditions most likely to produce ignition, the front of the distribution board was removed to provide a direct exit path for sparks and also allow escape in greater numbers. [PROD 1406 at 6.3.2; Dr. Jagger 22/03/2010; am p110]
In a further attempt to obtain ignitions, more energetic sparks were generated to increase the probability of ignition. If ignitions were easily obtained, the tests would be repeated under conditions more representative of Rosepark. [PROD 1406 at 6.3.3; Dr. Jagger 22/03/2010; am p111/112]
"Sparks of greater energy were created by connecting the live supply to earth via a rewirable fuse rather than the standard 80 Amp cartridge fuse. Under fault conditions, wired fuses react more slowly than cartridge fuses, so that larger peak currents develop before the supply is interrupted." [PROD 1406 at 6.3.3 Dr. Jagger 22/03/2010; am p115/116].
2. In addition, the mechanism of producing contact between the live wire and either the busbar or the casing, was by means of the wire being physically pulled or tugged against it. Often, despite contact being forced in that way, no sparks were produced. That was assessed as happening about 50% of the time. In fact there were occasions when it required two or three attempts to produce sparks by this forced contact. [22/03/10 124/125]
3. In these conditions, and with flammable sheet materials placed immediately below the base of the distribution board, (that is, at the height of the lower edge of the distribution board) one ignition was obtained and that was during one of the simulated earth wire to bus bar faults. [PROD 1406 at 6.3.3]
4. When the table height was lowered by 350mm, the sparks (generated under the aforesaid conditions) had further to travel. Additional, more combustible, materials were added. No ignitions were obtained. [PROD 1406 at 6.3.3]
5. Further tests were carried out using the live to casing fault fed from the 50 A Merlin Gerin breaker. The table was at a height level with the bottom of the casing. The table was draped with various combustible materials such as tissue paper, flexible foam, blue industrial paper wipes, rigid polyurethane foam, cotton cloth and polyester wadding. Dry combustible material was spread out behind the mounting board.
6. A total of 118 tests were performed. No ignitions in any of the materials laid out either in front or behind the distribution board unit were obtained. [PROD 1406 at 6.3.3]
7. 38 tests were undertaken in an attempt to ignite balls of acrylic wool. The wool was placed close to the ignition source. On no occasion was ignition achieved. [PROD 1406 at 6.3.4]
8. Ignition of acetone impregnated foam was easily achieved when the material was placed close to the ignition source. However, ignition was much more difficult to achieve with impregnated material placed at floor level. "This is probably due to the additional cooling undergone by incandescent particles travelling further to reach the floor level targets. By that time many particles would possess insufficient energy to ignite acetone vapour" [PROD 1406 at 6.3.5]
9. In 83 tests carried out on only one occasion was ignition obtained. [PROD 1406 at 6.3.4]
10. As a matter of fact, the testing programme did not develop so as to set up tests which were more representative of the conditions at Rosepark.
11. What inferences can be drawn from these tests?
(a) No testing was undertaken which sought to accurately replicate the conditions at Rosepark.
It was intended that such tests be undertaken in the event that sparks produced in the modified test conditions produced ignitions.
(b) The results of the tests which were undertaken, "have demonstrated the difficulty of obtaining ignitions and fires in several types of dry combustible materials. Since experimental conditions used were specifically devised to encourage ignitions, the lack of positive result suggests that the likelihood of an ignition is even more remote when conditions are more representative of the real situation." [PROD 1406 at 7 "DISCUSSION"]
In his report Dr. Jagger qualifies that part by stating, "Nevertheless the possibility cannot be discounted because they are known to occur" [[PROD 1406 at 7 "DISCUSSION"]
In evidence his position was that the ignition of solid combustibles by a spark was of very low probability. [Dr. Jagger 22/03/2010 pm, p6]
12. Looked at in the round, it is respectfully submitted that the evidence of Dr. Jagger is that whilst the ignition of solid combustibles by a spark cannot be discounted as a possibility it should be considered an event of very low probability.
Dr. Jagger agreed that the further that the spark has to travel then the more energy dissipates during that journey.
He also agreed that the further the spark has to travel the less likely ignition becomes as an event.
13. The weight of prevailing evidence, which is not challenged by this party, is that the seat of the fire was at a low level at the bottom of the left hand side of the cupboard. It is respectfully submitted that the seat of the fire is most likely to correlate to the point of ignition.
In re-examination Dr. Jagger considered whether it was possible that something ignited on the shelf and fell down.
He stated, "I think this would be difficult using this arrangement of fuels we've got here because the fuels are in relatively large pieces but it is possible for other fuels arrangements." [Dr. Jagger 22/03/2010 pm, p24].
14. Dr. Ivan Vince is well qualified and highly experienced in theoretical and practical combustion science. No other witness has his level of expertise in this field.
15. His evidence was that the spark that might have been produced as a result of the arcing event, "would have been too short lived, too transient, to have vaporised sufficient material to forma viable flame kernel." [Dr. Ivan Vince 11th August 2010 (am) p39]
16. Even if a small flame was produced, it would be unlikely to survive and propagate. [11th August 2010 (am) p39]
17. His opinion was that the chance of a spark vaporising enough combustible material to form a viable flame kernel were "very low indeed". [11th August 2010 (am) p40] and noted that, "...the experiments at the Health and Safety Laboratory back this conclusion up"
18. Dr. Vince accepts that it would not be impossible for a spark caused by arcing from the back of the distribution board to ignite solid material at a low level within the cupboard, "but it would be extremely difficult". [Dr. Ivan Vince 11th August 2010 (am) p69]
19. Even if there were solids which had been soaked in a flammable substance he indicated that they would not, "readily ignite". It would still be very difficult to have an ignition - though "much less difficult than if they were not soaked in ethanol" [ 11th August 2010 (am) p70].
20. The essential problem in both scenarios is that, "the ignition source is still of a very, of a very small volume and very short lived" [ 11th August 2010 (am) p70].
"If it falls into a liquid pool its useless. It's got to ignite the vapour above the liquid."
[11th August 2010 (am) p70].
21. It is, perhaps, a matter of common ground, that there is no evidence that there was any ethanol (or similar) soaked material within the cupboard prior to ignition.
22. Again, one can develop a hypothesis how that might have come about but it can be no more than a hypothesis, distinct from legal proof.
23. Looked at in the round, it is respectfully submitted that the evidence only admits this as a bare possibility, but a highly improbable event. It is submitted that it has not been proved that this, as a matter of fact, is what happened at Rosepark.
THE SECOND HYPOTHESIS - IGNITION OF FLAMMABLE GAS
1. It is plain from the tests undertaken by Dr. Jagger that in the event that a flammable mixture had formed in the vicinity of the distribution board then a spark, any spark, would be liable to ignite that.
2. Testing was undertaken involving flammable gases of the type ordinarily found in aerosol cans. [[PROD 1406 at 6.3.6]
"Ignitions of flammable gases resident in the vicinity of the distribution board were obtained without difficulty. Flames propagating in the gas cloud spread easily to involve flammable liquids and impregnate solid matter." [PROD 1406 at 7 "DISCUSSION"]
3. Dr. Jagger was also prepared to consider, as a possibility, that an aerosol may have discharged its contents and those contents becoming ignited by a spark.
.... What about the more general proposition I suppose of a flammable atmosphere building up as a result of ... an aerosol can ... leaking its flammable butane propellant. And I think the Advocate Depute's asked you a number of questions about that and I think we've identified one or two scenarios where that sort of thing might occur. Is that right? - Yes, I mean there are, there are situations where the, the aerosol may, may reduce, may release its contents.
Yes. And if one of those situations occurs is it the case that pretty much any spark will ignite that? - I think that's correct. I think the energies required to ignite the, the releases from the aerosol can are very low.
Yes. - And way below those that are required to ignite solid materials. Yes ... So if you have that highly combustible atmosphere all you need is a spark then to set it off. - Yes.
(pause) And the proposition further to that is that aerosol cans have been known to leak and leaks to ignite something, that does happen. - It does, yes. [Dr. Jagger 22/03/2010 pm, p11,12].
4. It was also the opinion of Christopher Martin that, were a flammable atmosphere to form, very little energy, by way of a spark or otherwise, would be required to ignite that flammable atmosphere.
Yes. Now you were asked could a spark or sparks in the area of the distribution box provide the necessary source of ignition. And how have you answered that question? - Well hydro carbon fuels, ehm, require only a fraction of a millijoule, it is what we call the minimum ignition energy, to ignite. So it, in terms of a spark it doesn't require a great deal of energy to ignite an electrical spark would be many, many more times the energy or contain many more times the energy than required for, to ignite the hydro carbon release.
Yes. - We ourselves could carry enough electrostatic discharge.
Sorry? - We ourselves could carry enough electrostatic discharge, you know when you get a shock in the car, ehm, that would be sufficient energy to ignite a hydro carbon paper. [Christopher Martin 30/07/10 am p37/38]
5. Dr. Ivan Vince advanced the proposition that there could have been a release of propellant gases, that is butane or propane or a mixture of both, from an aerosol located within the cupboard. That release then formed a flammable mixture in proximity to the distribution board and ignited as a consequence of the operation of a circuit breaker producing either a spark or an incendive plasma jet. [44/45; 47/48]
So in terms of the operation of a circuit breaker igniting a flammable atmosphere, how would that work? - Well inside the circuit breaker we have a, a small cavity. Ehm, if you form an electric arc within that cavity, eh, the temperature of that arc is several thousand degrees that if it lasts, eh, long enough will impart a lot of heat to the surrounding gas, which then will expand enormously ..
SHERIFF PRINCIPAL LOCKHART: Just a minute ...
THE WITNESS: ... and you will get a hot jet, eh, if you like a plasma jet, eh, emerging from the, from the orifice. Now if the, ehm, if the inside, if that cavity in the circuit breaker happens also to contain some flammable mixture then this, eh, effect is magnified.
But it's conceivable certainly, ehm, easily conceivable that, eh, a plasma jet will form even without the presence of, ehm, flammable mixture.
[11/08/2010(am)p47/48]
6. For the avoidance of doubt, it is not any part of this submission that the fire at Rosepark is proved to have initiated as a result of the ignition of flammable gases discharged from aerosols stored in the cupboard.
7. There were known to be a significant quantity of aerosols stored within the cupboard. Those aerosols have been involved in the fire and have undoubtedly become damaged as a result of that. In addition, they have also rusted over time.
8. There has not been a forensic examination of those canisters which demonstrates that one or more has been subject to a pre-accident failure mechanism. However, the extent of examination which has taken place cannot exclude the possibility that there has been such a failure. [Christopher Martin 30th July 2010 (pm); page 1 - 7; in particular page 5]
9. Nor could the possibility of a release of flammable gases followed by rupture due to fire damage be excluded. [Christopher Martin 30th July 2010 (pm); page 10 - 15; in particular page 15
10. Although Mr. Martin had thought that the potential rate of release might either be very small, or very large, the rate of release may depend, at least to some extent, on the nature of the particular fault. [Christopher Martin 30th July 2010 (pm); page 17]. Whether, and to what extent, there may be release at an intermediate level, due, for example, to corrosion, might require the specialist opinion of a metallurgist. [Christopher Martin 30th July 2010 (pm); page 18].
11. Dr. Jagger indicated that one possible release mechanism might involve the accidental release of the contents by placing a weight upon the release valve.
12. In any event, Dr. Vince accepted that his hypothesis was a possibility, and no more than that.
13. Dr. Vince recognised that there were a number of contingencies [11/08/2010(am) p94/95]
1. That a leak from an aerosol is, in itself, unusual.
2. That the leak has to be within a range that will allow a flammable vapour to form in the vicinity of the ignition source.
3. The flammable cloud mustn't be of such a size and a mixture strength as to generate a deflagration or sufficient over pressure to throw the cupboard door open.
14. It is submitted that the opinion of Dr Vince as a more highly qualified and experienced expert, is to be preferred to that of Mr. Martin that the ignition of a flammable cloud within the cupboard need not produce a deflagration (with resultant destructive effect). [11/08/2010(am)p55/56; 79].
15. For the same reason, the court is invited to find that the density of the flammable mixture would be subject to normal convective movements within the confines of the cupboard rather than, as suggested by Mr. Martin, sink to the bottom of the cupboard. [Evidence of Dr. Ivan Vince 46/47]
16. Mr. Mortimore expressed doubt about this hypothesis on the basis that the flammable atmosphere might not permeate the circuit breaker. Dr. Vince did not regard that as a significant problem.
Can you assist the Inquiry with whether or not the flammable atmosphere is liable to permeate the circuit breaker? - Yes, eh, I agree with, I think it's Mr Mortimore, that the only way for flammable, eh, for flammable atmosphere to get inside that cavity is via molecular diffusion, and I agree that that is a slow process. However the distance that the mixture has to, would have to, eh, travel is very short. It's only of the order of a few millimetres, perhaps 5 millimetres, ehm, and the speed of the diffusion will depend on the distance of travel. So of course the shorter the distance the more rapidly the material will diffuse in. And also on the concentration gradient, that is the difference in concentration of flammables outside and inside the cavity. And if you have a sufficiently concentrated, ehm, mixture outside, that's sufficient flammable material outside, and such a short path length, then it would be quite easy to show that, eh, within a matter of minutes you will have a measurable concentration of flammable material inside that cavity. [11/08/10 am, p50]
17. In addition, Mr. Mortimore offered the view that he believed that a circuit breaker was designed to quench a spark or flame. Again, Dr. Vince did not take the view that this was a significant impediment to the hypothesis.
What do you understand the issue to be? - Yes. Mr Mortimore, ehm, correctly, ehm, pointed out that because the gaps in a circuit breaker are so small, these would act as, eh, as an effective flame trap or a flame quenching mechanism.
Right. - I agree with that. But, ehm, the, the, there are two issues here which I think he perhaps neglected. One is that, ehm, a flame travelling very quickly will pass one of these traps before it has time to be quenched. Eh, and that, ehm, the, the criterion for nevertheless quenching a flame, even if it's travelling quickly, is something called the maximum experimental safe gap, or MESG, which I believe you asked him about. Ehm, in the case of butane it's about 1 millimetre. So if you have a 1 millimetre, if you have a gap which is 1 millimetre or greater then a rapidly moving flame may be able to escape through that gap without being quenched. To put it another way, ehm, the circuit breaker would probably not be certified for use in a flammable atmosphere. But the, perhaps the more important, eh point which I, I think was missed here, is that a plasma jet, which is very much hotter than a, a normal flame, and is travelling, eh, at a very high speed may well be able to get through that gap, even if an ordinary flame would be quenched. So in, ehm, in our research at Imperial College we had quite small, ehm, holes for the emergence of, eh, an enormous cigar of plasma jet which simply, ehm, ignored the metal surface around the hole and just burst out and was extremely good at igniting a flammable mixture outside.
[11/08/10 (am) p53/54]
THE THIRD HYPOTHESIS - IGNITION BY WAY OF CIGARETTE.
1. This is the explanation favoured by Dr. Lygate.
2. It was his opinion that the hypothesis that arcing at Cable V caused the fire, "...was so improbable as to be almost excluded." [Dr. Lygate 10th August 2010 (am), page 53]
Also at page 66 he stated
Yes. - But in my opinion Mr Mortimore's hypothesis has some material defects which mean that his hypothesis does not stand up to scientific analysis.
3. At page 60 he stated that
"...in my opinion what has been proposed is so low a probability to make the alternative hypothesis, namely that this fire was ignited by a discarded lit cigarette, the more likely cause".
4. It must be recognised, however, that there is no evidence of a cigarette having been discarded within the cupboard. Accordingly, this hypothesis might fall to be considered, in evidential terms, as improbable.
5. However, looked at in the round, the evidence of Dr. Lygate appears to be that it is more probable that the fire was caused by a cigarette, or other competent ignition source, than caused by an arcing event at Cable V. [Dr. Lygate 10th August 2010 (am), page 67]
6. Mr. Mortimore dismissed this hypothesis on the basis of the physical evidence. However, his approach generally was explained in evidence on 16th March 2010 (am, page 27).
Can I ask you, speaking generally as a fire investigator, how do you go about addressing the alternative potential sources of ignition in a case such as this? - One has to look at the physical evidence and also the witness evidence and effectively try and piece it together and see which makes sense. Now, generally speaking, the physical evidence is more reliable than witness evidence so one would tend to give that higher priority in coming to a conclusion. And I suppose the method is basically that employed by Sherlock Holmes; you eliminate the ones that you reasonably can and whatever's left, no matter how improbable, is the answer.
7. It is respectfully submitted (1) that on the evidence, none of the competing hypotheses can be entirely eliminated (2) that each hypothesis is improbable, though for different reasons (3) that in any event, for the reasons discussed at paragraph 16 and 17 of Chapter 43 (formerly in Chapter 2 of the Crown Submission, at paragraphs 8 and 9), it would not be appropriate, in considering whether a matter is proved or not, to adopt the approach relied upon in the preceding paragraph.
Chapter 44(1) (formerly Chapter 38 (1)) Reasonable Precautions - Cable Protection
Proposed Determination - "RP1: INSULATION AT THE CABLE V KNOCKOUT"
In the event that the submission on the matter of causation made on behalf of this interested party is accepted by the Court then the proposed determination would not be appropriate.
Otherwise, if the Court is satisfied that the cause of the fire is proved, as submitted by the Crown, then no issue is taken with the proposed determination.
Chapter 44 (2) (formerly Chapter 38 (2)). Reasonable Precautions - Inspection and Testing of the Electrical Installation.
Proposed Determination - "RP2: INSPECTION AND TESTING OF ELECTRICAL INSTALLATION"
In the event that the submission on the matter of causation made on behalf of this interested party is accepted by the Court then the proposed determination would not be appropriate.
Otherwise, if the Court is satisfied that the cause of the fire is proved, as submitted by the Crown, then no issue is taken with the proposed determination.
Chapter 45 (1) (formerly Chapter 39 (1)) Defects in Systems of Work. Inspection and Testing of the Electrical System.
"DS 1: DEFECTIVE SYSTEM OF WORK AS REGARDS MAINTENANCE OF THE ELECTRICAL SYSTEM"
In the event that the submission on the matter of causation made on behalf of this interested party is accepted by the Court then the proposed determination would not be appropriate.
Otherwise, if the Court is satisfied that the cause of the fire is proved, as submitted by the Crown, then no issue is taken with the proposed determination.
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY
AT HAMILTON
RESPONSE TO CROWN SUBMISSIONS
and of other parties
for
MS. SARAH MEANEY
in the cause
FAI (ROSEPARK CARE HOME)
_________________
Note: These responses, with transcript references, are based on the evidence of Ms Meaney given on 18th February 2010 am - 25th February 2010 am inclusive and on the content of Crown Productions led at the Inquiry. Re-numbered Crown chapters appear in brackets after the former numbering e.g. "Chapter 19A(21)".
Ms Meaney's general position in relation to Fire Issues
She was not involved in fire safety matters at Rosepark. Her only responsibilities were related to residents' care and nursing issues. She was not responsible for fire safety policies, training, equipment, fire alarms or drills or their records, procedures or risk assessments. She had no fire safety responsibilities in terms of employment contract, legislation or in fact. She was only involved in a basic staff introductory fire safety programme - "fire awareness". On one occasion she assisted in an emergency contingency plan to cover a threatened fire brigade strike. Fire alarm procedures and door closer equipment were all as she inherited them on her appointment.
CHAPTERS
Ch. 1. No comment.
Ch. 2. No comment.
Ch. 3. No comment.
Ch. 4. 9. She had responsibility for nursing and care training only. She had no responsibility for training in fire safety nor fire related health and safety issues. Her involvement was restricted to induction "fire awareness" (23rd February 2010, pm, p.91 and elsewhere and 25th February 2010, am, p.96). More detailed references are made in her responses to Chapter 16 and 17A (18).
11. She was not invited to attend to any management meetings to discuss fire safety issues.
CHAPTERS
Ch. 5. No comment.
Ch. 6. No comment.
Ch. 7. No comment.
Ch. 8. No comment.
Ch. 9. Reference is also made to response to Chapter 19.60 (20).
9.9. It is disputed that Mr Muir told Ms Meaney there would be a test. This would have required warning staff on the tannoy system. There is equally no reason why Ms Meaney is incorrect in her recollection. This was the first time Mr Muir was involved in installing or testing a fire panel at the premises. It may be that he tested the system set to silent mode.
9.11. It was not matron's role to advise staff, her having no knowledge of its operation.
9.12. The evidence of Nurse Sadiq in this regard is not accepted. Reference is made to the Response to Chapter 19.60 (20). She was a part time employed nurse and Ms Meaney would have no requirement to give her such information. No other employees speak to the panel being activated by Mr Reid.
Ch. 10. No comment.
Ch. 11. No comment.
Ch. 12. No comment.
Ch. 13. No comment other than is made to Chapter 17A.60 (18).
Ch. 14. No comment, save as below.
Responses to Submissions for the Balmer Partnership
Ms Meaney continued in the existing practices at Rosepark when she became matron. There was no written policy from management indicating otherwise concerning the cross-corridor doors. The reasons for doing so were that it enabled staff to observe at night wandering residents in the absence of glazed corridor doors and to prevent injury to residents being struck as the unglazed doors were opened next to them (18th February 2010, pm, pp.3-4). They had the added security that they closed anyway when the alarm went off automatically. She was in fact unaware they were kept open all during the night (21st February, 2010, am, p.85). The training video was adapted in practices to fit Rosepark's procedures and structure (19th February 2010, am, p.85). The video related to a residential as opposed to a care home (19th February 2010, am, p.83).
Response for Ms Meaney to Draft Submission for Lanarkshire Health Board
'Fair view of the evidence' (sic)
Ms Meaney stated that the door closers were removed before her appointment as matron (p.19/20). The entry or otherwise of the removal of the door closers in patients' records or other maintenance book does not logically affect that fact. The Court is asked to accept Ms Meaney's account. The Health Board officials may not have necessarily found their absence significant at the time. If it had been done in her time she would have seen it. Ms Meaney would not herself authorised door closers' removal or done it herself. She would have left it to management (24th February 2010, pm, pp.102-104).
Ch. 15. No comment save as follows -
21. The issue of closing doors was also fire safety related and a policy should have been provided by management.
31. There was no box in the care plan forms to complete specifically for door closing issues.
33. Bedroom doors were not meant to be left open "willy nilly" at night but only on the discretion as required basis of the nurse in charge "who had to have a reason for the door being left open" according to Ms Meaney. They were closed at 11pm and one or two opened but only ajar on request (19th February 2010, am, pp.82-83). Doors being left open depended on that patient's needs. The individual care plans did not have a box for this request but Ms Meaney thought such would be a good idea.
Responses to Submissions for the Balmer Partnership
Ms Meaney inherited the door closer situation as it was found when she was appointed in late 1998. The matter was an issue for the management as indeed that was the case when the Health Board inspection had raised and had corresponded with them in relation to the issue and its problems.
CHAPTER
Ch. 16. The following additional comments are made:-
1. Staff had access for reference purposes to the manual available to them in Matron's office to refresh their memory.
2. It is refuted that the manual, insofar as it concerned fire safety issues was Ms Meaney's responsibility. She was not the "fire person" (24th February 2010, am, p.9). She updated and compiled the sections relating to nursing, care and staff issues (e.g. p.43 of production 259 - uniforms policy updated). Her only fire-related involvement related to the 2002 Fire Brigade Strike and induction "fire awareness". Ms Meaney's dissociation from any setting of fire policies in the Manual is evident from the following comments on the origins of the various documents referred to in the Crown paragraphs.
3. This general statement of policy emanates from and is signed by the "owner" not Ms Meaney.
4. This page is also signed by the owners. The 'statutory duty' (sic) to communicate policies to all employees to be met by Matron is a nonsense. There is nowhere such a statutory duty. Ms Meany is unlikely to have created such a "duty" for herself in these terms when it did not even exist. Even on its own terms if they did apply, her responsibility would be to "communicate" not create policy. She had not given consent to her name being used for this (23rd February 2010, am, p.69).
5. It is even less likely that Ms Meaney formulated it given her lack of knowledge of legislation or any official guides, handbooks etc to create it.
6.-8. Pages 33-36 are general in nature and do not specify any fire safety matters. The jargon and content of this entry in the Manual would appear to come from an informed Health and Safety practitioner or other official source.
Ms Meaney had no fire safety training or experience and was unlikely in that absence to complete and sign such a risk assessment form in so far as it might have involved fire risks.
9. No comment.
10. 1. Pages 21-22 - This is a "Evacuation" checklist document prepared by Ms Meaney and the Matron of Croftbank in response to the correspondence from the Care Commission to the home in anticipation of the anticipdated Fireman's Strike in October/November 2002. Reference is made to the response made to Chapter 20 (22). This is Ms Meaney's only contribution (jointly with Croftbank's Matron) to fire safety entries in the Policy Manual. It was made up on the instructions of management and its contents composed from the documentation sent along with the Care Commission letter and verified by management (18th February 2010, pm, pp.45-46).
2. P.23 of Production 259 is an action form in the event of a fireman's strike made at the same time as the above evacuation checklist. (They both have the same print size/font.) It is not clear if these pages 21-23 were retained as a permanent "policy" for general use or limited to future possible fire strike situations (22nd February 2010, am, p.14 et seq) or simply another reminder of the importance of fire safety.
3. This forms pages 24-25 of the Manual and is a direct verbatim copy (minus illustrations) from a guide to the 1974 Act - it forms Production 244, p.16 alongside job specifications proforma for staff. It was not prepared by Ms Meaney but possibly originally by some official source.
"10." This staff form is also pp. 41, 42 and 44 of the Manual. It covers numerous staff issues. It is not so much a policy per se as some form of summary. It is perhaps notable that paragraph 25 only goes as far as to say "fire awareness" rather than fire safety training will be "ongoing". Ms Meaney did not compose this sentence (18th February 2010, pm, p.36). The deficiencies of fire training are discussed elsewhere in the responses to Chapters 17 (18) to 20 (22) and 38(4)(b) (44) and 39(2). It is also noteworthy that p43 of the policy manual is an example of nursing/staff issues update - in this case relating to uniforms policy etc.
6. No comment.
12-14. These paragraphs do not appear.
15. No comment.
16. No comment.
Additional Comments
Accordingly it is submitted that Ms Meaney had very limited input, if any, into the fire policy formulating process. She, being aware of her limitations and lack of experience, would not have made such an undertaking or commitment to fire related health and safety as a specialism. She herself was not given an induction course. She had never been a fire person in previous places of work. She was not before appointment or later asked at interview by management about her fire safety training.
She was not familiar with nor provided with fire safety legislation/guides and manuals etc which would be necessary for her to draft, compile and update fire policies. As the management knew she had been working abroad for long periods and never in an NHS context. Her CV (Prod. 815, p.78) is referred to. She would therefore not be familiar with the local legislation on fire issues.
All the unwritten practices, procedures and policies on
- Staff Assembly at fire panel on alarm sounding and fire seeking etc
- Removal of door closers
- Keeping doors open or shut at night
all pre-date and were in place before Ms Meaney's appointment as matron in 1998. Reference is made to the responses made to Chapters 17-22 (18-26) and in particular the comments on Matron's responsibilities in response to Chapter 17A (18).
The 'person registered' i.e. management is legislatively responsible for " maintaining or cause to be maintained records of fire records including tests and procedure ... etc" in the (Production 1899) - Nursing Homes Registration (Scotland) Regulations, Reg. 8. (1)(a)-(d), "Keeping fire procedure" records and it is submitted including creating "policies" relating to that procedure in the "making of adequate arrangements" (Reg. 13(3)(d).
The subsequent subsidiary legislation the (Prod. 1871) Social Care Regulations 2002 in Reg. 19(3)(b) and (c) attach that duty to the "provider" i.e. management - not the "manager" and not "the provider and manager". The mandatory obligation cannot it is submitted be devolved, delegated, shared or assigned. [It is of course important to note in the context of the terminology of this Inquiry "management" (as per Chapter 4 of the Crown Submissions does not incorporate "manager" as defined in the 2002 Care Regulations.]
In the entry for 20th January 2004 in the Care Commission self - audit (production 818, p.253) it is stated for management that "independent health and safety advisers' compile a policy manual in all aspects of safety and risk assessments". This is followed by reference to a "state of the art" fire alarm. Ms Meaney was not a health and safety adviser and this descriptive term of 'state of the art' is the one used by management rather than Ms Meaney. In compiling these audits Ms Meaney used information supplied from management.
Chapter 17 (18)
1. No comment.
2. Miss Meaney did not consider this sign to be accurate for Rosepark in respect that the alarm there was not a 'siren'. She had never seen it before (19th February 2010, pm, p.68-69).
3. This was effectively an extract of the fire brigade strike document in the policy manual (Production 259, p.23) but longer and with different details.
4. This is similar to pp. 21 and 22 in the policy manual Production 259 but is longer and has more detail (especially at point 5).
The terminology of the notices may have also created some confusion. It is not perhaps too pedantic to note that most of the fire notices are headed with an element of the contingency of an actual fire as opposed to the mere sounding of the alarm bell, e.g. "on discovering fire ..."; "In case of fire ..."; "Procedure if fire breaks out ..." (25th February 2010, am, pp.82-83).
Chapter 17A
1. In terms of the relevant legislation, as either "employer", "person registered" or "provider" management was solely responsible for health and safety in the premises.
2. No comment.
3. It is refuted that Ms Meaney had any policy role in relation to fire safety. Reference is made to the response in Chapter 16.
The occasion of fire brigade strike in October/November 2002 was the exception to this where having herself as well as management (Prod. 530) been written to she and her Croftbank counterpart prepared the contingency plan (18th February 2010, pm, pp.43-66).
4. Matron had no policy responsibility statutory or otherwise. Reference is made to the responses in Chapter 16.
5. No comment.
6. No comment.
7. No comment.
8. This document was created without Ms Meaney's knowledge, signature or approval. She did not accept fire safety issues were her 'remit'.
9. This is disputed that she had any such responsibility for fire safety matters and the Crown submission at 11 hereof is respectfully adopted.
10. No comment.
11. No comment.
12. This submission is respectfully adopted however it is submitted that there was never any confusion on Ms Meaney's part - as far as she was concerned, she had no fire safety responsibility. This point is made repeatedly in her evidence (e.g. 24th February 2010, am, pp.9-10). She was not 'the fire person'. She merely did 'fire awareness'.
13. This submission is respectfully adopted.
14. No comment.
15. No comment. Save:
4. She inherited the practice. It was just learned by colleagues all acting the same way (18 Feb. 2010 pm pp7-8)
16. No comment.
17. No comment.
18. No comment.
19. No comment. Save:
2.3. Reference is made to comments already made in relation to the video and how its composition did not explicitly contradict the existing practices.
20. No comment.
21. No comment.
27. 2.2. Reference is made to comments made in earlier responses in relation to the video and its many deficiencies and lack of comprehensiveness, cohesion and clarity.
Responses to Submissions for the Balmer Partnership
The management had the sole responsibility in addressing issues to do with fire safety issues. It is not accepted that she had any responsibility to communicate fire health and safety issues to staff. She should either have been trained to do so or another communicator/trainer appointed for that task. A responsibility cannot properly be imposed on someone without their agreement. She would not have taken it on. It is respectfully submitted that limited weight be given to the evidence of Mrs Boyle who was apparently suffering ill health in the witness box and her reliability and recollection were impaired. It is submitted that management allowed a vacuum of responsibility to exist in this area whether Mr Balmer was present or not. As stated above it is disputed that Ms Meaney was to her knowledge part of policy making processes in regard to fire safety, except for the contingency strike procedures in late 2002.
Responses for Sarah Meaney to - Submissions for Joseph Clark
It is refuted that "it was the care manager's responsibility to ensure Mr Clark carried out the duty". Mr Clark was not an employee under the matron's charge. He did not receive any instructions on fire safety or other issues from her and worked separately for management and was effectively head of his own one-man department. The only occasion he was requested to carry out a fire drill by Ms Meaney was in the test a week or so before the fire on 21st January 2003 when Mr Balmer was on holiday and the matron was in the course of her task of completing a Care Commission self audit.
Paragraph 18.1 Ms Meaney discussed fire drills with her nursing staff as to how they had performed only insofar as they were under her charge as nurses and 'fire awareness' was one of their requirements. The relevant entry in the Fire Book for that occasion (Prod. 27) was made in Mr Clark's handwriting, according to Ms Meaney (18th February 2010, pm, pp.12-15).
Chapter 18 (19)
No comment. Save
Chapter 19 (20)
Fire training - General observations
1. No comment.
2. No comment.
3. No comment except to add - It follows that staff with fire safety responsibilities should be provided by management with suitable training literature e.g. official booklets, leaflets, manuals etc to keep themselves familiar with current fire safety issues and regulations. Such literature as could have been available as seen in the Crown Productions was complicated and hard to digest, its being written in statutory style language. In any event none was provided to matron or staff.
4. No comment.
5. No comment.
The Opening of the Home
1. No comment.
2. No comment.
3. No comment.
4. No comment.
5. No comment.
6. No comment.
7. No comment.
8. No comment.
9. No comment.
10. No comment.
11. No comment.
12. Reference is made to the comments at 13 below.
13. Ms Meaney when on the occasions she did raise with management issues on a number of occasions of further fire training she was reassured that the premises were purpose built, safe, a state of the art fire alarm system and had fire-safe stair wells (e.g. 24th February 2010, am, p.21 and 19th February 2010, pm, pp.7-9).
14. This was obtained by Mr Balmer in response to an advertising flyer.
15. The following additional comments are made:-
The Video
A detailed study and comment on the training video with questionnaire is important as it was the only training resource provided to staff by management. It is said by the Crown that its instructions were countermanded at Rosepark.
The training video had the potential to be misleading and confusing to staff at Rosepark due to its editing/cutting and use of "flash-back" scenes. By the outset of the video we are told that fire has been discovered and the fire brigade phoned. We are given no details of the fire. These comments can be about the video:-
- It did not fit in with the context of the initial procedure already practised there
- It contained a number of snippet scenes of basic fire safety practice and information but due to its editing/cutting it had a possibly confusing sequence format
- Its scenes did not follow the normal sequence of events in time at the outset when the alarm goes off - in the video the fire has already been discovered and the fire brigade called and an evacuation organised - the matron can be heard to say so under the voice-over.
We are shown a red glow behind a glazed door and there is no scene at all covering the actual discovery of the fire and how the alarm came to be activated. We are not told nor do we see it or significantly where it was or how or if it was being dealt with by extinguishers or otherwise. The corridor doors all have large glass panels. The fire portrayed was said to be a small one - but no staff deals with it. Significantly for this Inquiry's circumstances NO SMOKE its control or effects are mentioned or displayed (except in the final scenes portraying fire extinguisher use outside). The evacuation scenes do not convey any sense of urgency. It does not cover the situation where all the residents are in bed or totally immobile. The video did not represent a care home. It was a residential home. Almost but one of all the residents could walk in the video.
In the absence of portrayals of these crucial steps it may easily be seen how a different existing practice continued to be followed unreviewed.
- The questions in the accompanying questionnaire could be misleading in the context of what fire safety procedure was already practised at Rosepark.
- Due to its editing/cutting, the video shows the fire panel reading scene at a later stage in the film. The sequence of events in the video (if the viewer is not alert to flash-backs) disjointedly flicks from one location to another and back.
The sequence of events and locations in the video are confusing as it moves about lounges (two or three are shown), staff kitchen, corridor areas, foyer, bedrooms, offices (two) front and back of the building. The fire officers are seen arriving near the beginning of the film, running towards the premises and in a scene near the end arriving at the foyer/panel area. No one is seen including fire officers to fight the fire. Two evacuation scenes are shown - one near the start of the film and another longer scene later on. One resident, the lady in Room 20 (later seen passing the lift) is rescued TWICE - once in each scene. On each occasion she is aided by a different member of staff - and on the second occasion she has changed her blouse for the occasion. A woman not in nurse wear (jacket and skirt) (not identified as the manager or "nurse in charge") phones the fire brigade.
We are not told when in the fire sequence she phones. She is not actually identified as "the nurse in charge" (referred to in q.10 in the questionnaire) only such might be assumed by the viewer that her given role is to call the fire brigade. We are not told when and if she was given that phone-call role - that evening.
Although related to evacuation the advice "First you have to identify where fire is", if taken out of context, this remark could be confusing in the context of the existing Rosepark practice. The word "first" is used only in that context in the film.
The sequences do not follow typical time sequence of a fire outbreak. Although it is the now accepted correct practice nowhere does it state in terms the "first" thing is to phone fire brigade only "that it is done" everytime and someone is given the role to make the phone call. The word "first" is never used in that context. It is only stated that it should be done and that someone should have the specific role of making the case. The video transcript states (Prod. 1645), "If the alarm sounds the zone will light up identifying the location of the trouble. Some alarms especially in larger homes are linked directly to the fire brigade. Still it is someone's job when that alarm goes to telephone the fire brigade. If it is yours, do it and do it everytime. Do not assume it is a false alarm. It may well be but you can never be sure. Stay calm and give the information asked for. If it is not your role to make the call go to the area indicated on the panel and if you can start to move people to a safe area".
The video also seems to be giving the advice that everyone regardless should converge on the place indicated on the panel to assist evacuation. This may well be applicable in some cases but overlooks a structured plan for other staff - some might need to fulfil other tasks if instructed.
Finally it can be observed that these premises were apparently "residential" and not a care home.
Albeit we are told that potentially flammable materials have to be stored away from heat sources in locked cupboards, no source of heat is seen or defined (light bulbs, hot water bottles?, dehumidifiers etc). No distribution board is shown as a heat source. Anything electrical even a fire alarm might be classified as a heat source. (Ms Meaney was never aware of the distribution box being hot.)
There is no mention of aerosols made in the video and their risks. In so far as they are 'flammable' at Rosepark they were kept in a locked inner cupboard "away" on advice of the Health Board.
A few oddities exist in the video advice - e.g. toasters apparently can be allowed in rooms (and possibly chip pans), if attended when in use and not placed under a smoke alarm.
At the end of the day the video was as given to staff by management and had to be applied under reference to existing practices already laid down and practised at the home. A thorough professional risk assessment would have revealed the blatant difficulties with the video.
Because the video was the only material staff had been provided with by their management, they had to make do and adopt or adapt as best could to reconcile with existing practice/procedure as operated by management (19th February 2010, am, p.85 and 23rd February 2010, am, p.39).
It is perhaps small wonder some staff, albeit a small number out of the total staff (and maybe management too) were confused by the contents of the video and question 10 on the questionnaire. Because of the way it is edited, it is possible to see how some staff might be confused in its application.
If it is suggested that staff operated a practice "contrary" to the contents of the tape and questionnaire then it is merely submitted that this was to a degree understandable due to the film's editing and mixed content and perhaps ambiguous questionnaire and management's existing fire search practices. It was just that the search/find procedure was "an understood thing" (22nd February 2010, am, p.54) and the video it is submitted may not have addressed that practice.
16. No additional comment.
17. 1-4: No additional comment.
18. No comment.
19. No additional comment.
20. No comment save to say that in the absence of glass panels fire doors were left open to observe for "wanderers" and to prevent door-opening collisions.
21. No comment is made except to say - The video does not illustrate a fire or 'heat source' in an linen cupboard.
22. No further comment is made except the video does not specifically state that the manager/matron instructed the woman (whoever she was) who phoned the fire brigade to do so or when in the sequence of events.
23. No additional comment other than that to say the Crown now suggest D was the correct answer. This is perhaps indicative of the confusing nature of the video's contents and its questionnaire.
24. No additional comment.
25. No additional comment.
26. No additional comment.
27. No additional comment.
28. 1-3: No additional comment.
29. No additional comment.
30. No additional comment.
31. No additional comment.
32. No additional comment.
33. 1-3: No comment except to say it was never more than "fire awareness" that was given at the induction not full fire training.
33.2. Break glass points were also indicated.
34. No additional comment.
35. No additional comment.
36. No additional comment is made.
37. No additional comment.
38. No comment is made except to say some staff experienced fire safety in action on the floor at fire alarm drills observed by senior nurses 'on the floor' and some did SVQ courses which may have had a fire safety element. There was NO discussion of fire safety at staff meetings. The word "significant" was used in a leading question. Ms Meany qualified that by stating that (19 Feb. 2010 pm p93) fire was not discussed.
39. No additional comment is made.
40. No additional comment.
41. No additional comment.
42. No additional comment.
43. No additional comment.
44. No additional comment.
45. No additional comment is made.
46. No additional comment is made save to say it was "fire awareness" training which was to be "ongoing". 'Fire awareness' was part of induction training devised by the matrons of Rosepark and Croftbank for new employees. It consisted of a tour of the premises given by a senior nurse who pointed out the building layout, the fire panel, five exits, break-glass points, escape routes, extinguishers. There then followed a viewing of the fire video and a test questionnaire completed which was put in the individual's personal file. The procedure if there was a fire was discussed (18th February 2010, am, p.144-5). This procedure was also inherited from before her time (18th February 2010, om, p.7). Before its introduction in 2009 there had, according to Ms Meaney, been little if anything (23rd February 2010, am, p.39). They were observed by senior nurses to see if they were doing what told (19th February 2010, am, p.52) "on the floor" (19th February 2010, pm, p.34). She accepted that staff needed better training in fire safety issues than just the fire awareness programme. It was hoped it would be developed more at NVQ level (23rd February 2010, am, p.36).
47. This submission is respectfully adopted. Matrons did not organise such sessions nor were instructed to do so.
48. No additional comment is made except to say fire break glass alarms were also shown.
1. No comment
2. No additional comment
49. No additional comment is made except to add, Ms Meaney thought that the Care Commission might raise the issue of fire safety training with management as she had herself been unable to progress the matter with management. Reference to this is made elsewhere.
50. 1-5: No comment.
51. 1-3: No additional comment is made.
52. No comment.
53. 1-2: No comment.
54. No comment.
55. No comment.
56. No comment.
57. No comment.
58. No comment.
59. No comment.
60. No comment save to say, it is refuted that Ms Meaney told nurse Sadiq that they were getting a new fire panel. Ms Meaney was clear that she had no knowledge there was anything wrong with the panel (23rd February 2010, pm, pp. 13-14). She did not know until told as she was leaving that day (23rd February 2010, pm, p.13) by Mr Balmer that a new panel had been fitted. There is no other evidence that Mr Reid, Mr Alan Balmer or anyone else previously told Ms Meaney of the proposed change. The use of a spare panel from Croftbank was an impromptu decision by Mr Reid and Alan Balmer. Even if she had been earlier told of an intended new panel it was not matron's role to advise staff of its operation or training in regard to it. It would have required someone skilled and knowledgeable about fire alarms - not herself (23rd February 2010, pm, p.21). In her view it would be for management to tell the staff (23rd February 2010, pm, pp.27, 30) and Mr Clark to demonstrate it to staff. She had never herself activated a panel (24th February 2010, am, p.159-160). She disputes it was sounded as all staff including herself would have heard it and run to panel area (23rd February 2010, pm, p.22/23 and 24th February 2010, am, p.163) and the test would have been put on the tannoy system (25th February 2010, am, p.91-92). She was merely told that the panel was horizontal and not vertical as before (24th February 2010, am, p.6). She did not look at it (24th February 2010, am, p.158). Even if she had been told of a new panel's installation and test, it was not her role to inform or instruct staff in its details and use.
61. No comment.
62. No comment.
63. No comment.
64. 1-2: No comment.
65. No comment.
66. No comment.
67. No comment.
68. No comment.
69. No comment.
70. No comment.
71. No comment.
72. No comment.
73. No comment.
74. No comment.
75. 1-7: No comment.
76. No comment.
77. No comment.
Responses to Submissions for the Balmer Partnership
As stated Ms Meaney was not confused as to whether she had any fire safety role beyond the induction fire awareness induction training. She never gave any lectures on fire safety nor was told to organise one.
It was management's statutory duty to provide such records on training.
Response to the Crown Ministers' Submissions
Chapter 19 (20)
1. Clearly the Crown also can be confused by the video's questionnaire. It is not accepted that (albeit in fact the best practice) that the video makes entirely clear (as narrated above) that D is the "correct" answer.
Chapter 19A (21)
1-8. No comment.
20. No comment is made other than:-
5. This was the only occasion Ms Meaney was involved and even then jointly with Croftbank's matron in creating fire policy and procedure. She did so on request by management.
21. 1-6: No comment.
22. No comment is made save:-
The conclusions of 29 and 29.1 are respectfully adopted. As are 37.1 and .2.
Chapter 20 (22)
5. Ms Meaney was surprised to see that it was said she had "a responsibility for implementing fire policy". She would never have accepted such a role having no relevant experience or training.
8. This was the only occasion when Ms Meaney had an input into fire safety policy.
Chapter 21 (23)
14. This conversation was not put to Ms Meaney in her evidence.
Responses to Submissions for the Balmer Partnership
That this was a concern put to Ms Meaney was not put to Ms Meaney in her evidence. As stated, Ms Meaney had no confusion as to her sole responsibility being care issues and exclusive of fire related issues.
Chapter 22 (24)
23. Ms Meaney filled in the pre-inspection return with information from Mr Balmer when she had no information herself to enter - e.g. fire certification, fire risk-assessments. That information was retained by management.
29. It is contrary to Ms Meaney's evidence about meeting Mr Reid and it is concurred that it should be rejected.
29.1. Ms Meaney never met Mr Reid.
29.2. As above averred in 29.1.
37. It is concurred in that Mr Balmer's evidence should be disregarded. She never saw it nor got any feed back.
38. She received this information from management.
Responses to Submissions for the Balmer Partnership
It is refuted that Ms Meaney had any dealings with risk assessments or Mr Reid. She signed entries in pre-assessment returns with information provided to her management. Ms Meaney would be unaware when any risk assessment was completed or not.
Response to Submissions for Strathclyde Fire Board and Fire Rescue Service
As stated elsewhere, Ms Meaney was not privy to the fire risk assessment inspections or findings. It is submitted that it was not provided to her by management because she had no fire safety role in the premises.
Response to Submissions for Joe Clark
With regard to calling the Fireman's Strike meeting of staff in or about November 2002, Ms Meaney's position is that if Mr Balmer who went through the details of the contingency checklist (18th February 2010, pm, pp.6-7). She could not recollect who had actually made up the contents which was prepared in conjunction with the Croftbank matron (18th February 2010, pm, pp. 45-46 and 66).
Responses for Ms Meaney to draft Submissions for James Reid
6. It is explained with reference to Production 1123 that Ms Meaney's name was entered by the Secretary as an alternative contact in the absence of Mr Balmer and since Mr Clark "might not be in the building" and to assist the secretary's task (23rd February 2010, am, pp.88-89). She was responsible in part for health and safety issues so far as relating to nursing care aspects. The risk assessment forms were in any event not completed by Ms Meaney but by Mr Balmer and his secretary (23rd February 2010, am, p.91-92). Other nurses seem to have been involved such as Nurse McCarthy for emergencies (23rd February 2010, pm, p.95).
Chapter 22A (25)
1. No comment save as below.
2. No comment.
Response to Responses for Strathclyde Fire Board and Fire Rescue Services
3. According to Ms Meaney, the key gates were retained in matron's office and could be obtained by staff if requested (e.g. by the Fire Services) (23rd February 2010, pm, p.84). Staff Nurse Queen was not asked for the keys by attending fire officers.
Chapter 22B (26)
No comment other than:-
252. Ms Meaney said that staff could look at video again at will. They also experienced fire awareness on the job, at alarm drill exercises and some staff did SVEC training. Any awareness was experienced at fire drills and "on the floor" experience observed by staff in charge (19 Feb. 2010 am p52 and 19 Feb. 2010 pm p32) She accepted this was inadequate "fire training", and had raised the issue with the Care Commission and stated needed "development/improvement - continued fire safety training for all staff" (production 818, p.252).
Chapter 22C (27)
No comment except to remark:-
Ms Meaney hoped that this would cause the Care Commission to raise the issue with management. In her evidence she explained that the fire training was not detailed enough.
68. This has the 'mantra' of management speak e.g. "state of the art fire alarm system". It is notable that it is "health and safety advisers" that are said to inspect and compile a policy manual in all aspects of safety and risk assessments. It is not stated that a matron does so.
CHAPTERS 23 to 37 inclusive (28 to 43 inclusive)
No comments.
Chapter 38 (44)
1. No comment.
2. No comment except to note as follows:-
3. A. 1.6 'heat sources' no comment is made other than what is previously remarked re the video content.
B. 3.4 'bedroom doors closed' - No comment is made other than previously remarked re the video content.
C. No comment.
D. No comment other than to restate and emphasise that the accumulation of aerosols in the cupboard A2 were on the instructions of the Health Board.
E. No comment.
4. No comment.
A. No comment.
B. No comment except -
3.3. Staff could see the video again on request.
3.4. It was senior nursing staff who delivered the induction training.
To the Responses by the Care Commission
Bank staff Nurses Queen and Norton might have, as experienced NHS trained and employed nurses, been assumed to have taken part elsewhere in fire drills and trained with fire extinguishers. It is not of course disputed that they should both received more fire safety training specific to working at Rosepark.
Responses for Ms Meaney to draft Responses for Brian Norton
It is accepted that bank staff also needed adequate fire training related to Rosepark. It was perhaps taken for granted that NHS experienced trained nurses already had basic fire safety skills (22nd February 2010, am, p.87-90). They were given the basic induction walk round (19th February 2010, am, p.53). There were not many employed by Rosepark.
C. No comment.
5. No comment.
6. No comment except -
2. Ms Meaney was not involved in any fire risk assessment with Mr Reid or anyone else. She was not invited or instructed by management to do so. She did not receive any copy of or feedback in relation to a fire risk assessment and did not have discussed with her the contents thereof.
Chapter 39 (45)
1. No comment.
2. No comment.
3. No comment other than as follows -
11. The fire and fire related health and safety policy issues were not in Ms Meaney's remit either by statute or in practice (save for the Fireman's Strike in November 2002). She was not and did not expect herself to be involved in fire safety policy formulation. Her task was to update staffing and nursing policies as instructed. The comments made in relation to Chapter 16 are referred to.
14.b. Matron was never obliged by statute, designated, contracted, instructed nor trained to play a fire safety role. Her role cannot be more clearly defined than that. The comments made generally in relation to Chapters 4, 16, 17A (18) and 19 (20) are referred to.
c. Save for the Fireman's Strike November 2002, there is no "in as much as" involved. Reference is made to the preceding response. It is disputed that that role was carried out or "left" to her. She was not informed of it.
18. The above responses to Chapters 13(3), 14b and c are repeated. Her lack of training in fire safety to fulfil any such role is not disputed and to which fact she readily agreed. She would not have herself undertaken such a role.
28.3. Matron played no role in risk assessment. The responses to Chapter 22 (24-27) and elsewhere are referred to.
4. No comment.
5. No comment.
Chapters 40 - 44 inclusive
No comment.
Chapter 45
3.(new) Reference is made to earlier comments on Matron's role with regard to fire safety policy. It was not delegated to Matron except on the occasion of the Fireman's Strike.
Chapter 46 (new)
(1)(13) In relation to the Care Commissions submissions the following comments aremade:-
"Ms Meaney confirmed that there was no criticism of the Care Commission intended in the use of the 'lax'. It is submitted she probably meant 'relaxed'. She thought they were more realistic and not unreasonable (24 Feb. 2010 pm pp31-32)."
(6) Risk Assessment 2. As indicated Ms Meaney was not involved in or remitted to fire risk assessment.
Trainor Alston & Co
Solicitors
18 Academy Street
Coatbridge
ML5 3AU
Answers to the Crown proposed determinations for Ms Queen.
Proposed determination 1.1 in Chapter 38 (5).
"The exhibition, on prominent display in Matron's office, of a laminated sheet specifying clearly what information should be given to the Control Operator by the member of staff who calls the Fire Brigade"
Proposed determination 1.4 in Chapter 38 (5).
"Provision to the Control Room Operator by Isobel Queen of the correct access address for Rosepark Care Home, namely Rosepark Avenue"
It is necessary to consider proposed determination 1.1 when addressing proposed determination 1.4. For the avoidance of doubt, it is respectfully submitted that the proposed determination at 1.1 is correct. Such a card would have been an obvious centre point in appropriate fire training and fire drills. It would have had an obvious utility in that, reinforced by appropriate training, it would have provided a known routine for a person to follow when under stress in an emergency situation. The reason why the card is appropriate is that it is often observed that people in stressed situations often make mistakes. They can focus on one particular part of their role and neglect the rest, often vital parts of their duty. There is ample evidence in the transcripts to this effect. {See the evidence of Michael Gray, consultant ergonomist on the 21st of April 2010 at page 120 in the morning session and pages 1 and 2 in the afternoon session of the same date.} It is submitted that in the absence of a well known procedure, helpfully contained in an aide memoire, there can be no surprise at the sort of mistake made by Ms Queen. Indeed it is to be expected in such stressful situations.
If one considers the logic behind making these two determinations, management can hardly be criticised for failing to provide an aide memoire if they could have reasonably expected their employees to deliver flawless information to the emergency services in an emergency situation. If criticism is to be made of the management for failing to provide such assistance, backed by appropriate training, then surely it must follow that no criticism can attach to the employee failed by its absence. Proposed determination 1.4 is the consequence of failing at 1.1, which is the cause. It is submitted that these determinations must be in alternate, and cannot co-exist. As previously stated, it is further submitted that the proposed determination calling for the provision of an aide memoire in the Matron's Office be preferred.
It is also difficult to see that the there could have been much confusion had the fire service read the erroneous address. Many of them seemed to know where the premises were. There was only one street in the area with Rosepark in its name. That street happed to be the street which formed the corner block on New Edinburgh Road where the home was, and where the crews attended.
Finally, It is not clear on what basis the Crown invites the Court to make proposed determination 1.4. Paragraph 4 of the minute founding the inquiry focuses on the management of home and the deficiencies therein that reasonable precaution might have remedied. On no view, and all the evidence heard by the inquiry contradicts the idea, that Ms Queen formed part of the management of the home.
Proposed determinations in Chapter 38(4)(c)
"1. It would have been a reasonable precaution for Isobel Queen to be given instruction in relation to the new fire alarm panel.
2. Had this precaution been taken some or all of the deaths might have been avoided."
It is submitted on behalf of Ms Queen that this must be right. The evidence indicates that when there was a false alarm prior to the night of the fire which Ms Queen dealt with in the manner expected of her. She identified the zone and attended there, albeit that the zone in question was the attic. The only difference between the night of false alarm and the night of the tragedy was the unannounced new panel. In the middle of the night, confronted with a previously unseen piece of equipment in a pressured situation, Ms Queen had difficulty in responding to that alarm as she had done to the prior false alarm. Given these circumstances her difficulty was perhaps only to be expected. {See the evidence of Michael Gray, consultant ergonomist on the 21st of April 2010 at page 120 in the morning session}.
Proposed determinations in & 38(4)(B) "Training and Drills", and paragraphs 8. 9 and 10 of the discussion of Chapter 38(4)(A) "Information at the fire alarm panel"
"1. It would have been a reasonable precaution for staff to have been provided with adequate training and drills in the action required of them in an emergency.
2. Had this precaution been taken, the deaths might have been avoided."
That the staff at Rosepark, and in particular the nightshift, did not have the adequate fire safety training is beyond argument. Issue is only taken in regard to what might have happened in this particular fire had the staff been better trained. Specifically, would the staff have tackled the developing fire effectively or indeed, could they reasonably have been expected to tackle the developing fire at all?
For obvious reasons there seems to be a degree of cross fertilisation in the Crown's approach to both these chapters, and so it is necessary to deal with both at the same time. In the second named document at paragraphs 8, 9 and 10; and, as outlined below, in the first named document at page 11 of the Crown there are made the following points:
"7.3. Those members of staff would have arrived at the location in time to engage in emergency fire-fighting.
7.4. If they had been effectively trained in the use of fire extinguishers, it could be anticipated that the fire would have been extinguished at this stage.
7.5. Even if they had not been able to do this, the staff would have shut the cupboard door and the bedroom doors in the area. This would have bought material additional time and provided temporary protection to the residents in their rooms"
The actions detailed above rely upon the staff "picking up a fire extinguisher" whilst running to the scene of the fire, presuming that the staff could anticipate the appropriate sort of extinguisher needed to deal with the indicated fire. To make this submission, the Crown rely upon the evidence of Mr Mortimore. Mr Mortimore was clearly a well qualified man. However he has no qualifications in fire fighting, and certainly has no practical experience of fighting fires. On the other hand Brian Sweeney, the head of Strathclyde Fire and Rescue, is obviously very well qualified to speak of such matters. What he said, on the afternoon of the 13th of July 2010 at p99, when presented with the circumstances that pertained at Rosepark on the ignition of the fire justifies inclusion here,
" - (Mr Sweeney) That would be an example of circumstances where I would say to someone that good training would make it clear that they should not attempt to extinguish the fire in those circumstances.
(Counsel) - And would I be correct in thinking that there would be a great amount of danger in even approaching the area, such as to close the door, for example? - (Mr Sweeney) Yes, there would. The thermal over pressure that would come from such a number of aerosols in a confined space would be very dangerous.
(Counsel) - And so the advice would be stay well clear? - (Mr Sweeney) Stay well clear"
It would therefore appear that well trained staff, even properly equipped, would have known not to attempt to tackle this fire, or even approach the cupboard and close the door. They would have adopted the procedure of waiting for the fire service to arrive. Thus the proposed determination that staff could have fought the fire and saved lives if successful, is not justified by the evidence.
This point also arises in Chapter 39(2) at 3.2.
Chapter 23 paragraph 9 and, also as it relates to paragraph 22 of the discussion accompanying the proposed determinations of Chapter 39(3)
"1. The management of fire safety at Rosepark was systematically and seriously defective.
2. The deficiencies in the management of fire safety at Rosepark contributed to the deaths."
The purpose of this discussion is not to challenge the proposed determination that the management of fire safety at Rosepark was defective, nor that those defects contributed to the loss of life. The purpose of this discussion is to place the actions of Ms Queen into context.
Ms Queen is identified as being someone who did not take control when the fire alarm went off, and who did not know the home's procedure. Whilst she initially expressed some doubt about the procedure in oral evidence, what she settled upon was the procedure of the home as identified by nearly all of the nursing staff who worked there. Namely, attend at the fire panel, identify the zone, send members of staff to check to see if there was a fire, if there was a fire to phone the fire service, and then try to remove residents from the area of danger. The nurse in charge was then to liaise with the emergency services when they arrived.
If one looks at what she did on the night of the fire, then it can be seen that she attempted to implement this procedure. She attended at the fire alarm panel, misread the zone, with the consequence that proper zone was not checked. On discovering a fire the fire service was called by her. She removed those residents that she could reach from the area of immediate danger. She was then present for the arrival of the fire service and tried to provide them with assistance, including having a note of the residents and their room numbers.
It is accepted that there was confusion at the fire alarm panel. This was the first time that she had seen the newly installed panel. She was not expecting to see a new panel as no one had told her of its installation. It was her first time on shift after its installation. In addition, the zoning information on the card was inaccurate, confusing and difficult to relate to the information on the panel. She was not to know, and could not have been expected to know, that the only part of the system that had changed was the panel itself. It patently took time for her to try and familiarise herself with the panel and the zones that related to it. There was obviously a discussion between those present at the fire panel, who were attempting to interpret the information that it was giving. It would appear that Ms Queen was not the only person there who had difficulty interpreting what the panel was indicating.
The fact that it was a new and unfamiliar panel obviously unsettled Ms Queen. As has been previously noted in these submissions, expert evidence from Mr Gray supports the idea that this surprise, and its consequent impact upon performance, is to be expected. Confronted with an unfamiliar situation she took advice, which it is submitted was reasonable in the circumstances.
This uncertainty was evident when Ms Queen asked her colleague Brian Norton for advice when no fire had been found. In effect he advised her to do what she would normally do, which she did and silenced the alarm. To say that Brian Norton instructed that the fire service be telephoned is to over state matters. He was communicating the fact that he had discovered a large amount of smoke and that there was obviously a fire, which he did by shouting words to the effect of, "phone the fire brigade there's a fire", as anyone would.
As stated above Ms Queen did attempt a rescue, and got some of the residents to safety. She attempted to gain access to the smoke logged corridors to make a further rescue, to the extent that she placed an incontinence pad over her mouth to enable her to breathe, but was beaten back by the smoke.
Summation on behalf of Ms Queen.
The generality of the evidence discloses that Ms Queen responded on the night of the tragedy in the same way that any of the other nursing staff employed by home would have, had they been on duty. The policy for responding to an outbreak of fire was inadequate. That she was inadequately trained to deal with the outbreak of fire is beyond question. All the nursing staff employed by the home were inadequately trained to deal with an outbreak of fire. As a night shift worker, Ms Queen was particularly failed by the absence of such training.
Her lack of training was compounded by the installation of an unfamiliar fire alarm panel. It should be remembered that dealing with a fire alarm, produced by a fire alarm system that one doesn't understand, in the middle of the night, in a building where there are lots of vulnerable residents asleep, must have been very stressful indeed. The fact that people placed in such situations act sub-optimally offers no surprise and only goes to reinforce the notion that much of the human element in identifying fire and communicating its outbreak could, and ought, to have been removed insofar as was possible. The system now in place in the Rosepark home would have addressed these concerns.
Ms Queen presented as a nurse who cared about her charges. She recalled the residents who died, their personalities and their habits, fully six years after the tragedy. It is unfortunate for her that she happened to be the nurse in charge of the home that night. From the evidence it is submitted that had any of the other nurses employed been in charge that night, then the result would have been the same. They would now carry the permanent scars inflicted by the events of that night, as Ms Queen presently does.
The fire and its aftermath is something that Ms Queen, a young woman, has had difficulty in dealing with. It is to her credit that through determination and effort she has returned to her work in the building adjacent to scene of the fire. She still finds herself upset at the memory and has tried her best to cope with it. She is conscious however that she was on duty the night people died, people who were under her care and for whom she cared. She will forever remain conscious of it.
The aftermath of fire has also been testing. Numerous police interviews and media attention over a period of years was something that she had difficulty in dealing with. She found giving evidence upsetting, as she had to relate memories that are clearly very painful for her.
Whatever her own tribulation however Ms Queen is acutely aware of the pain that this tragedy has caused to the families who lost loved ones on the night. She wishes to express her profound sorrow for the deaths and sends her condolences to the families. Their constant attendance at such a long and difficult Inquiry is truly remarkable and stands as testament to them.
SUBMISSION BY COUNSEL
On behalf of
Mr BRIAN NORTON
In causa
FATAL ACCIDENT INQUIRY
INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
In light of the evidence lead at the Inquiry and the Crown's written submissions thereon, submissions on behalf of Mr Brian Norton are brief. A response to the Crown submission is given below on a chapter by chapter basis.
Chapters 1- 29 of the Crown Submission[4922]
Background to the circumstances of the fire at Rosepark Care Home
No issue is taken with the content of these Chapters. Chapter 28[4923] narrates thoroughly the events of the night of the fire itself and, at paragraph 142, states:
"In the result, thanks in large measure to the efforts of Mr Norton and Miss Carlyle, all of the residents from the lower level were successfully evacuated. Their actions, in dangerous and frightening conditions, ought to excite the highest admiration."
I would respectfully endorse the Crown's commendation on this point.
Chapters 30- 41[4924]
Proposed Determinations under section 6(1)(a) of the 1976 Act:
Where and when the deaths and any accident resulting in the deaths took place
No issue is taken with the content of these Chapters, nor is it proposed to add anything further under the heading of section 6(1)(a).
Chapters 42 and 43[4925]
Proposed Determination under section 6(1)(b) of the 1976 Act:
The cause or causes of such deaths and any accident resulting in the deaths
No issue is taken with the Crown analysis of the evidence as to the cause of the deaths, as detailed in Chapter 42[4926]. Similarly, no issue is taken with the proposed determination of the Crown in terms of the cause of the fire as being as a result of an earth fault where Cable V passed through the knockout at the back of the distribution box in cupboard A2: indeed, this proposed determination of the Crown is actively adopted and supported on Mr Norton's behalf, on the basis of the relevant evidence as discussed in this Chapter of the Crown submission.
It is stated at Chapter 37[4927] in the submission by Counsel on behalf of the Balmers that:
"A great deal of the Crown analysis in this case about the cause of the fire is predicated on the basis that the staff who smoked would be telling the truth about whether they had disregarded smoking materials.
"Without being judgmental, common sense dictates that it would be unlikely for a person to admit that they were involved in such activity, even inadvertently."
In response to this statement, it is submitted that there is no evidence that any member of staff discarded smoking materials in any place that they ought not to have and, further, that any assertion made to this effect is mere speculation. In particular, this contention was never put to Brian Norton in cross examination for his comment.[4928] Given the absence of any evidential basis for this statement, it ought to be dismissed as being speculation and an unfair comment.
Chapter 44[4929]
Proposed Determination under section 6(1)(c) of the 1976 Act:
The reasonable precautions, if any, whereby the deaths and any accident resulting in the deaths might have been avoided
No issue is taken with, nor is it sought to add anything to, the Crown submission under Sections 1- 3 of this Chapter.
Section 4(b) of this Chapter addresses Training and Drills. At Paragraph 3, it is stated:
"The actual arrangements for training and drilling of staff at Rosepark were woefully inadequate;"
and at Paragraph 3.7, it is stated:
"Night staff were neglected. The night staff who gave evidence had never had the benefit of a fire drill at Rosepark. This left them very vulnerable."
These assertions by the Crown are endorsed on Mr Norton's behalf. Further, it is submitted that a distinction can be drawn, quantum valeat, between permanent night staff and bank staff. The Inquiry heard evidence that the shift pattern of a bank nurse would generally be "sporadic"[4930] and "irregular"[4931] and might typically encompass between 6 and 12 shifts in a year[4932]. This would be in contrast to the shift patterns of a permanent member of staff on night duty, whose shifts would necessarily be considerably more frequent. Miss Meany told the Inquiry that it was normally the case that a bank staff nurse would work the night shift.[4933] The induction process for bank staff at Rosepark was limited in its content and erratic in its delivery.[4934]
Given the relative infrequency of bank staff shifts and the resultant limited scope available to bank staff for familiarity with the building and with the alarm system, added to the general isolation of being on night shift, it is submitted that bank staff were subject to an even greater degree of vulnerability and neglect than were permanent night staff, in terms of preparedness for an emergency situation.
Chapter 45[4935]
Proposed Determinations Under section 6(1)(d) of the 1976 Act:
The defects, if any, in any system of working which contributed to the deaths or any accident resulting in the deaths
No issue is taken with any aspect the Crown submission in this Chapter. It is stated in section 2 of this Chapter, at Paragraph 1.5 that:
"The arrangements in respect of nightshift were particularly unsatisfactory."
This statement is adopted and supported.
Chapter 46[4936]
Proposed Determinations Under section 6(1)(e) of the 1976 Act:
Any other facts which are relevant to the circumstances of the deaths
No issue is taken with any matter discussed in this Chapter, nor is it proposed to add anything further under the heading of section 6(1)(e).
Conclusions
Overall, the Crown submissions, insofar as they affect Mr Norton, are adopted and supported by Counsel on his behalf. In particular, the proposed determination relative to the cause of the fire is adopted and endorsed. Further, the proposed determinations discussed in Chapters 44 and 45[4937] of the Crown submission, relative to the inadequacy of the management's arrangements for fire safety training, are supported.
The Inquiry has been, on any view, a painstaking process of investigation and exploration of the circumstances of the Rosepark Care Home tragedy, both at the oral and the written submission stages. There is nothing further I can add to what is, in my respectful submission, a very fair, thorough and comprehensive analysis by the Crown of the evidence lead at the Inquiry.
E C Toner,
Advocate,
Advocates' Library,
Parliament House,
Edinburgh
17th February 2011
SHERIFFDOM OF SOUTH STRATHLCYDE, DUMFRIES AND GALLOWAY AT HAMILTON
RESPONSE TO CROWN AND OTHER INTERESTED PARTIES' SUBMISSIONS ON BEHALF OF YVONNE CARLYLE
In Causa
FATAL ACCIDENT INQUIRY INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
RESPONSE TO CROWN SUBMISSION
CHAPTER 37
THE HSL TESTS
Solid Material Soaked In Flammable Liquid.
Par. 88
Under reference to the bottle of "Bronnley Blue Poppy Body Splash", the Crown submit:-
"There is no obvious explanation as to how the bottle could have become broken before the fire unless perhaps it was knocked over as Yvonne Carlyle was extracting the white roll from the cupboard."
Whilst conceding this to be a possibility, there is no evidence to support it being factually correct.
There was no evidence as to where the bottle was actually placed i.e. whether it was stored securely or precariously poised on the edge of a shelf, and thus likely to be disturbed by the vibration of pedestrian traffic passing up and down the corridor outside the cupboard.
Furthermore, the Nurse in Charge on the back shift, Phyllis West had cause to visit Cupboard A2 between 7 and 8pm on 30th January 2004, and could thus have been responsible for the dislodgement of the bottle.¹
It is respectfully submitted that the latter two scenarios are equal possibilities.
QUOAD ULTRA the Interested Party takes no issue with the Crown Submissions and Proposed Determinations, and has nothing to add.
RESPONSE TO SUBMISSION FOR THE BALMER PARTNERSHIP
The following observations and submissions are made:-
In relation to Chapter 37 (The Cause of The Fire) Counsel for the Partnership submits:-
"It is instructive to note that in his first report Mr Madden indicated that he was of the opinion that a short circuit at Cable V was a very low probability event. Dr. Lygate is of the opinion that Mr Madden's earlier statement is the more accurate and in his opinion so low a probability to make the alternative hypothesis namely that fire was lighted by a discarded lit cigarette or other material the most likely cause......... it is respectfully submitted that on balance, the experience and qualifications of Dr. Lygate render his opinion of the cause of the fire the most likely."
He goes on to observe:-
"It should also be noted that if a fire were started by a cigarette or match it would have been destroyed by the fire. A great deal of the Crown analysis in this case about the cause of the fire is predicated on the basis that the staff who smoked would be telling the truth about whether they had disregarded smoking materials. Without being judgemental common sense dictates that it would be unlikely for a person to admit that they were involved in such an activity even inadvertently."
1. In relation to the discarding of material into the bottom left hand corner of the cupboard, standing the physical evidence of the position of the cupboard doors the Crown state:- "....it is difficult, if not impossible, to envisage how this could have occurred". The Inquiry had the benefit of Production 887Y, a photograph of the inside of Cupboard A2. This shows 3 internal shelves running the full width and depth of the cupboard. The Inquiry heard evidence of the amounts of various materials stored, not only on the shelves, but at the bottom of the cupboard. In the light of the photographic and oral evidence, it is respectfully submitted, impossible to envisage how this could have occurred.
2. If a fire is started by a cigarette or match, the cigarette or match will have been destroyed by the fire.² However, if a cigarette or match were to be discarded and simply burned itself out, a residue of the article would be left. On 18th March 2010 a.m. P131 Mr Mortimore gave the following evidence:-
Q. If we have a situation where an article is discarded, nothing is ignited and the article simply burns itself out of its own volition, would it be fair to say that there would be a residue of that article to be seen, in other words would it leave its mark?
A. That would be correct if we didn't have fire - so one would go into the cupboard and one would have the roll of tissue paper with maybe a little bit of charring and a dog end on top of it, but when one gets a fire such as we have here, even if a cigarette had been discarded and it hadn't caused the fire one would not have any residue of it.
Q. Yes, I think my point was if nothing had happened, if something had been discarded and simply burned itself out, there would be something left to be seen?
A. That's correct.
Q. Eminently discoverable?
A. Yes.
The evidence indicates that Cupboard A2 was in constant use by all members of staff. The hypothesis that ignited material would have been discarded at that locus by a member of staff is, it is submitted, fanciful.
3. Cupboard A2 is located across from and almost within touching distance of a sluice room. It is submitted to be within judicial knowledge that a sluice room provides access to water, a medium which extinguishes the ignition of most materials. In the, as will be submitted, inconceivable event, that anyone had wished to dispose of ignited material, common sense dictates that the sluice room would be the obvious port of call.
4. The fire took place before the "Smoking Ban". There were designated smoking areas in the Home. ³
5. On nightshift, staff who smoked did so in the designated smoking room on the upper floor. When leaving the room to attend to residents they left their smoking materials in that room. 4
6. Prior to the alarm sounding Miss Carlyle had been attending to Mr Russell in Room 6, then went to the sluice. On her way back his buzzer went, and she returned to adjust his door. She went to the office and the alarm sounded. Having checked downstairs, she took Mrs Murphy upstairs, with the alarm still sounding. It then becomes apparent that there is a serious fire and events unfold as described to the Inquiry. In the morning, after the fire, Miss Carlyle was given a cigarette by one of the kitchen staff, having left her own cigarettes in the upstairs smoking room. She next saw her cigarettes at the police station, they having been lifted from the smoking room by Mr Norton. 5 It is respectfully submitted that the Inquiry can conclude that Miss Carlyle did not carry smoking materials with her as she went about her duties.
7. The Inquiry heard evidence of restless residents being brought upstairs to sit with staff, of a staff member sitting with a resident in her room and of staff sitting outside a resident's room. It is respectfully submitted that the Inquiry would be entitled to, and should conclude, that the staff on duty that night were responsible, caring and dedicated to the welfare of the residents.
8. The Inquiry observed the demeanour of members of staff, both in the witness box and at the Fire Panel. It is respectfully submitted that the Inquiry would be entitled to, and should conclude, that they were telling the truth.
9. Any discarding of ignited material would have placed at risk, not only the lives of the residents, but those of the staff themselves. Indeed, in the course of the fire their lives were placed at risk, in particular those of Mr Norton and Miss Carlyle who attempted heroically to reach the residents of corridor 4, and carried out the evacuation of those on the lower floor.
For all of the foregoing reasons it is respectfully submitted that it is inconceivable that the fire was ignited in the manner suggested in the Submissions of The Balmer Partnership.
It is respectfully submitted that those Submissions be rejected.
The Crown Submissions as to the cause of the fire are adopted.
Quoad ultra no comment is made on the Submissions for The Balmer Partnership.
RESPONSE TO SUBMISSIONS FOR ALEXANDER ROSS
1. The above Submissions relating to The Balmer Partnership are referred to and held to be repeated brevitatis causa.
2. At P29 Par 21 it is stated:- "It is perhaps a matter of common ground that there is no evidence that there was any ethanol (or similar) soaked material within the cupboard".
There was, however, a broken bottle of ethanol based body wash found in the cupboard after the fire.
Quoad ultra no comment is made on these Submissions.
No comment is made on the Submission for the remaining Interested Parties.
Agents for Miss Yvonne Carlyle
Watters Steven & Co
291/3 Brandon Street
Motherwell
ML1 1RS
¹ Phyllis West 23.11.09 p.m. p38-39
² Stuart Mortimore 16.3.10 a.m. p116
³ Brian Norton 26.11.09 a.m. p88-89 & 102 and p.m. p74-75
4 Brian Norton 26.11.09 a.m. p88-89
5 Yvonne Carlyle 27.11.09 p.m. p61-64
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY AT HAMILTON
RESPONSE TO CROWN SUBMISSION
ON BEHALF OF JOSEPH CLARK
i.c.
FATAL ACCIDENT INQUIRY
INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
CHAPTER 4
In paragraph 27 it is narrated that:
"The home employed a maintenance man, Joe Clark. He had been employed since 1993. He undertook maintenance duties about the home."
However, Mr. Clark explained that he was employed as a "maintenance man/driver" who worked 37 and a half hours per week. [Joseph Clark 22/1/10 am 50]. He estimated that between 15 to 20 hours could be given over to driving, depending on circumstances. [Joseph Clark 22/1/10 am 51] . Mr. Clark, therefore, was not employed solely in respect of maintenance duties at the home.
In paragraph 28 it is narrated that:
"Mr. Clark had a number of duties in connection with fire safety. He undertook the weekly fire alarm test. He also led the discussions following any fire drills. Staff looked to him for advice in relation to responding to fire alarms. Mr. Clark had, however, no expertise in matters of fire safety. "
Mr.Clark was not present at discussions after fire drills and any discussion was amongst the nurses [Sadie Meanie 18/2/10 pm 27-28], [Chapter 19A para. 55].
CHAPTER 10
In paragraph 37.4 it is narrated that:
"Mr. Clark thought it would have been Mr. Ross who fitted the box, although his evidence on the whole question was confused and unsatisfactory."
It is submitted that Mr. Clark's evidence on the question was not unsatisfactory given that the person most likely to have carried out the work could, himself, not remember having done it. His evidence was that it was the sort of job he could have done. [Alexander Ross 27/1/10 pm 32].
CHAPTER 17A
Paragraphs 6 and 10 {about Sadie Meanie and Brigid Boyle respectively} narrate that both matrons understood that Mr Balmer and Joseph Clark were responsible for matters of fire safety.
However, Brigid Boyle was matron of the Rosepark home from 1992 until 1997. Sadie Meanie was the matron from 1998 until 2005. Throughout the period 1993 to March 2003 the fire alarm and associated systems were maintained by Mr. Fotheringham's firm, Comtec [Ian Fotheringham 15/1/10 am 37] His evidence about the concept of the responsible person was that:
" Mr. Balmer, in my opinion, being the owner, would be the responsible person" [Ian Fotheringham 15/1/10 am 144].
He continued to explain:
"but most of our time was taken up by either the matron or sister, and usually Joe, to be fair. Our day- to- day contact any time we were there we would obviously see who was in charge, a senior person, be it sister, matron, staff nurse, whatever. And nine times out of ten we would be passed on to Joe then, and Joe would come down and explain what the problem was whether it was a missed call point or something wrong with the tannoy system." [Ian Fotheringham 15/1/10 am 144].
Mr. Thomas Balmer's evidence was that in terms of fire alarm tests and ensuring that the emergency lighting was effective, Mr. Clark was responsible [29/4/10 am 78] and that it was the care manager's responsibility to ensure Mr. Clark carried out the duty [29/4/10 am 79].
Accordingly, it is submitted that Mr Clark was far from being responsible for matters of fire safety and that he acted on the instruction of others.
In paragraph 18.1. it is narrated that Mr. Clark typically led the discussion following fire drills. However, Mr.Clark was not present at discussions after fire drills and any discussion was amongst the nurses [Sadie Meanie 18/2/10 pm 27-28], [Chapter 19A para. 55].
CHAPTER 20
Footnote 14
The footnote refers to Joseph Clark saying that he took the staff through the "Checklist for Evacuation" step by step.There is no such reference on the pages identified. On page 5 of the said transcript it is stated by Mr. Clark that the matron called the meeting , and she introduced the meeting and spoke at it. He spoke at it as well to reiterate instructions issued at the time of the firemen's strike.
PROPOSED DETERMINATIONS
There are no proposed determinations.
A. Taggart
Advocate
17 February 2011
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY AT HAMILTON
SUBMISSIONS
On behalf of
MR REID, INTERESTED PARTY
In causa
FATAL ACCIDENT INQUIRY
INTO THE DEATHS OF
ANNIE (NAN) STIRRAT
JULIA McROBERTS
ROBINA WORTHINGTON BURNS
ISABELLA MacLEOD
MARGARET LAPPIN
MARY McKENNER
ELLEN (HELEN) VERONICA MILNE
HELEN (ELLA) CRAWFORD
ANNIE FLORENCE THOMSON
MARGARET DOROTHY (DORA) McWEE
THOMAS THOMPSON COOK
AGNES DENNISON
MARGARET McMEEKIN GOW
ISABELLA ROWLANDS MacLACHLAN
Rosepark Fatal Accident Inquiry - Submissions for Mr James Reid
Introduction
These submissions are intended to assist the Inquiry in relation to matters bearing upon Mr Reid's involvement. The submissions will be confined to Mr Reid and to those with contemporaneous involvement and will not address many of the other issues which the Inquiry may consider to be of relevance.
The only chapters that these submissions relate to are chapter 22 and chapter 38(6). No issue is taken in respect of all remaining chapters or the relevant proposed determinations in respect of the risk assessment.
The Crown submissions as relevant to Mr Reid
Chapter 24 - Mr Reid
All of the Crown submissions within this chapter are accepted. Within the submissions certain additional information is provided to assist the Inquiry.
The following is a brief summary of the additional points that it is submitted the Inquiry should consider within chapter 24.
· Mr Reid had attended a course on fire risk assessment and was provided with a self study guide.
· Mr Reid believed at the time that he was suitably qualified.
· He was employed by the Balmers as an advisor. He was never asked to put in place an evacuation plan or become actively involved in staff training. His agreed fee was commensurate to the level of work and instructions provided.
· Mr Reid is not named as being in any way responsible for health and safety.
· Mr Reid discussed a lot more with the Balmers than is ultimately recorded within production 216.
· Had Alan Balmer not been in a position to answer Mr Reid's questions the visit would have been re arranged.
Chapter 24(3)
It is accepted that in 2003 Mr Reid held no specific qualifications in respect of fire risk assessment.
Mr Reid did attend a one day fire safety audit and fire risk assessment course at Gullane. Albeit the course lasted one day Mr Reid was provided with a handbook intended to be used as a self study guide. Mr Reid advised the Court that he had read said book (Mr Reid 18/02/2010 am p17).
Chapter 24(4)
Given Mr Reid's attendance at the courses outlined within Crown submission three and the fact that he had carried out numerous risk assessments prior to becoming involved at Rosepark Mr Reid believed that he was suitably qualified for the job. The Balmers never suggested to Mr Reid that this was anything other than the case (Mr Reid 18/02/2010 am p 21). Mr Tom Balmer formed the impression that Mr Reid was "exceptionally knowledgeable" in the field of health and safety (Mr Balmer 12/05/2010 am p48).
Mr Reid advertised himself as an advisor and was employed by the Balmers in this capacity. It follows that he relied on his clients to implement the changes and suggestions that he made (Mr Reid 18/02/2010 am p23 and Mr Tom Balmer 12/05/2010 am p50).
It is accepted that Mr Reid in producing a suitable and sufficient risk assessment should have addressed the needs of the residents within the home. By way of explanation it is submitted that Mr Reid wrongly believed that such matters would be dealt with in house.
Mr Reid was never instructed by the Balmers to put in place an evacuation plan or indeed become actively involved in staff training. This was conceded by Mr Tom Balmer during the course of his evidence (Mr Balmer 12/05/2010 am p57).
Within Rosepark there was a regular turnover of residents. All of these residents would have had different needs and disabilities. There was a waiting list for a bed within the home (Mr Balmer 12/05/2010 am p56). In addition staffing numbers regularly changed with the employment of bank nurses. In order to keep the risk assessment suitably up to date Mr Reid would have required to attend the home more than once a year, as agreed and this would have been reflected in his proposed fee. This was conceded by Mr Tom Balmer during his evidence (Mr Balmer 12/05/2010 am p57). Colin Todd during the course of his evidence accepted that Mr Reid's fee was extremely low were he to be responsible for carrying out the full fire risk assessment to the required high standard. In his own words he was; "not sure how he earned a living" (Colin Todd 28/07/2010 pm p81). Based on the agreement at the time Mr Reid understood that Mr Balmer was to retain responsibility for the evacuation plan and all staff training would be dealt with in house. Beyond advising that both should be in place and kept up to date Mr Reid, as advisor had no further active part to play. (Mr Reid 18/02/2010 am pp27-28 and pp46-50). Mr David Charters during the course of his evidence conceded that it was perfectly reasonable for Mr Reid to undertake a risk assessment without being involved in the implementation of the actions. In addition if Mr Reid had been told by Mr Balmer that he was not required to put in place an evacuation plan it was not unreasonable that he prepared an assessment of a very general nature (David Charters 20/07/2010 pm p70).
Chapter 24(6)
Mr Reid had provided Mr Balmer with various documents, the intention being that they were to be used to formulate a health and safety policy manual. (Mr Reid 16 February 2010, am, p61). None of Mr Reid's said documents were recovered and referred to at the Inquiry.
Within the policy manual (Crown Production 259) Mr Reid is not named as being responsible in any way for health and safety (Mr Tom Balmer 12/05/2010 am p49).
Within Crown Production 1123, Employer Health and Safety Compliance Appraisal Mr Balmer and Miss Meaney are named as responsible for Health and Safety. No mention is made of Mr Reid.
Chapter 24(28.2)
In addition to going through a list of computer generated questions Mr Reid discussed more with Alan Blamer than what we ultimately see recorded in his report, production 216. Mr Tom Balmer accepted that this was normally the case (Mr Balmer 12/05/2010 am pp73-74). This came from an understanding Mr Reid had that a suitable and sufficient risk assessment could constitute a mixture of oral discussions and written recordings. This understating came from the use of the term "record significant findings" within the regulations. (Mr Reid 18/02/2010 am p41). By way of example Mr Reid recalls discussing with Alan Balmer the closing of the bedroom doors and being told that some of the residents became distressed during the night. Mr Reid's advice would have been that the doors should remain closed. There is no evidence of this discussion within production 216 (Mr Reid 18/02/2010 am p 24).
Chapter 24(29.3)
Had it become apparent during the course of the walk round that Alan Balmer was not in a position to answer the questions Mr Reid would have re arranged his visit (Mr Reid 18/02/2010 am p33). Mr Reid was flexible with regards to the timings of his visits to the home and this was accepted by Mr Tom Balmer (Mr Reid 18/02/2010 am p32 and Tom Balmer 12/05/2010 am p41).
Chapter 44(6)
The following is a brief summary of the additional information it is submitted that the Inquiry should consider within chapter 44(6).
· There is no evidence to suggest that when Mr Reid attended the home in 2003 flammable materials were stored within cupboard A2.
· In 2003 and based on information provided by Mr Balmer Mr Reid was satisfied that a suitable emergency plan was in place.
Given Mr Reid's concession during the course of his evidence no issue is taken in respect of the proposed determination. Production 216 is therefore not a suitable and sufficient risk assessment.
The following submissions are made in respect of points 11(c) and 11(d). There is no dispute with regards to all remaining points.
11(c)
Mr Reid's report is dated 6 January 2003. The Inquiry has heard no evidence to suggest that when Mr Reid visited the home in 2003 flammable materials were stored within cupboard A2. It is submitted therefore that Mr Reid could not have advised that aerosols should be removed if they were in fact not there.
Production 216 p8 G1 addresses the fact that the door to the main electrical cupboard was left unlocked and the recommendation is that it should be locked at all times. Mr Reid told the Inquiry that his advice at the time would have been that doors to all electrical cupboards should be locked (Mr Reid 18/02/10 am p43).
11(d)
Mr Reid's understanding of the emergency plan was that the fire brigade were to be called immediately on the alarm sounding. He had spotted the various notices displayed within the home and viewed the staff training video. His understanding was that the emergency plan in place at Rosepark was in line with what was outlined in the video. There was no documentation displayed throughout the home to suggest that this was anything other than the case. Mr Reid had been told that staff were shown the training video with a view to them adopting its content (Mr Reid 18/02/2010 am p34). Colin Todd accepted during the course of his evidence that he would not have expected Mr Reid to write the emergency plan but he would have expected discussions to take place with regards to the contents of the plan (Colin Todd 28/07/2010 pm p85). In 2003 and based on information provided by Mr Balmer Mr Reid was satisfied that a suitable emergency plan was in place.
Gillian Ross, Advocate
January 2011
[1] The Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No.2) Order 2006, schedule 1, para. 6; Production 1879;
[2] 2002 Regulations, reg. 19(3)(b)(c) and (e)
[3] Martin Shipp, 13 April 2010, am, pp. 74-76
[4] Determination into the death of Alexander Cusker, 16 December 2008, Sheriff JK Mitchell; adopted in Determination into the death of Mildred Rosenshire, July 2010, Sheriff IHL Miller.
[5] Chapters 30 (formerly 25) and 42 (formerly 36).
[6] Black v. Scott Lithgow Ltd 1990 SLT 612, 615H
[7] Black v. Scott Lithgow Ltd 1990 SLT 612, 615H
[8] cp IHB Carmichael, Sudden Deaths and Fatal Accident Inquiries, 3rd edn, para. 5-76.
[9] Determination into the Death of Kieran Nichol, 3 June 2010, Sheriff G Liddle, para. 7.
[10] Determination in relation to the Death of Sharman Weir, 23 January 2003, Sheriff F Reith Q.C.; adopted in Determination in relation to the Death of Kieran Nichol, 3 June 2010, Sheriff G Liddle, para. 9.
[11] Ibid.
[12] Determination in relation to the Death of James McAlpine, 17 January 1986, Sheriff Kearney; adopted in Determination in relation to the Death of Kieran Nichol, 3 June 2010, Sheriff G Liddle, para. 8; see also IHB Carmichael, Sudden Deaths and Fatal Accident Inquiries, 3rd edn, para. 5-75.
[13] Ibid.
[14] IHB Carmichael, Sudden Deaths and Fatal Accident Inquiries, 3rd edn, para. 5-77.
[15] The 1976 Act, s. 4(7).
[16] Cp Global Santa Fe (Drilling)(North Sea) Ltd v. Lord Advocate 2009 SLT 597, para. 28 per the Lord President (Hamilton).
[17] Determination in relation to the Death of Mildred Rosenshine, July 2010, Sheriff IHL Miller
[18] The 1976 Act, s. 4(7).
[19] The 1976 Act, s. 4(7); Global Santa Fe (Drilling)(North Sea) Ltd v. Lord Advocate 2009 SLT 597, para. 29 per the Lord President (Hamilton).
[20] Chapter 43.
[21] David Woodward, 17 November 2009, am, pp. 16-17.
[22] William Dickie, 12 January 2010, am, p. 165
[23] Allison Cumming, 18 November 2009, pm, pp. 82-83.
[24] David Woodward, 17 November 2009, am, pp. 39-40; Allison Cumming, 18 November 2009, pm, p. 85
[25] Allison Cumming, 18 November 2009, pm, p. 85.
[26] Allison Cumming, 19 November 2009, pm, pp. 40-41, 41-42.
[27] See further Chapter 11, para. 14.
[28] Sadie Meaney, 18 February 2010, am, p. 69.
[29] Allison Cumming, 18 November 2009, pm, pp. 85-87.
[30] Allison Cumming, 18 November 2009, pm, pp. 83-84.
[31] Allison Cumming, 18 November 2009, pm, p. 84.
[32] Phyllis West, 23 November 2009, am, p. 78, 80-81.
[33] Allison Cumming, 18 November 2009, pm, pp. 87-88, 91.
[34] Allison Cumming, 18 November 2009, pm, p. 89.
[35] David Woodward, 17 November 2009, am, pp. 46-47.
[36] Allison Cumming, 18 November 2009, pm, pp. 88-89, 91.
[37] Allison Cumming, 18 November 2009, pm, p. 91.
[38] Yvonne Carlyle, 27 November 2009, am, pp. 17-18.
[39] Chapter 11, paras. 14-30.
[40] Yvonne Carlyle, 27 November 2009, pm, pp. 7-8, 20.
[41] The smoking room is seen in Pro 881F: Sadie Meaney, 19 February 2010, pm, pp. 78-79.
[42] Allison Cumming, 18 November 2009, pm, p. 96.
[43] Allison Cumming, 18 November 2009, pm, p. 98.
[44] Allison Cumming, 18 November 2009, pm, p. 98.
[45] Stuart Mortimore, 11 March 2010, pm, pp. 90-91.
[46] Stuart Mortimore, 15 March 2010, am, pp. 3-4.
[47] Stuart Mortimore, 15 March 2010, am, pp. 4-6.
[48] Stuart Mortimore, 11 March 2010, pm, pp. 39-43.
[49] Stuart Mortimore, 11 March 2010, pm, pp. 90-91; Thomas Balmer, 28 April 2010, pm, pp. 46-47.
[50] Joseph Clark, 20 January 2010, pm, pp. 58-68.
[51] David Woodward, 17 November 2009, am, p. 31.
[52] David Woodward, 17 November 2009, am, p. 34
[53] David Woodward, 17 November 2009, am, pp. 34-37; Allison Cumming, 18 November 2009, pm, p. 96.
[54] David Woodward, 17 November 2009, am, pp. 23-26, 29.
[55] David Woodward, 17 November 2009, am, pp. 29-30.
[56] Allison Cumming, 18 November 2009, pm, pp. 79-80; Thomas Balmer, 6 May 2010, pm, p. 2.
[57] Thomas Balmer, 6 May 2010, pm, pp. 2-6.
[58] William Dickie, 12 January 2010, pm, pp. 1-2.
[59] Thomas McNeilly, 22 January 2010, am, pp. 141-142.
[60] Allison Cumming, 18 November 2009, pm, p. 97; and see her use of the term "the ground floor" to refer to the lower floor on 19 November 2009, pm, p. 31, ll. 17-23.
[61] Mhairi Sadiq, 29 July 2010, pm, pp. 41-44, 48.
[62] Patricia Taylor, 25 November 2009, am, pp. 121-122; Irene Richmond, 1 December 2009, am, p. 44; Isobel Queen, 1 December 2009, pm, p. 79.
[63] Yvonne Carlyle, 27 November 2009, am, p. 14.
[64] Yvonne Carlyle, 27 November 2009, am, p. 38.
[65] 27 November 2009, am, p. 39.
[66] Thomas Balmer, 28 April 2010, am, pp. 3-4; Alan Balmer, 2 June 2010, am, pp. 129-130; Anne Balmer, 15 July 2010, am, p. 57.
[67] Thomas Balmer, 28 April 2010, am, pp. 5-6.
[68] Sadie Meaney, 18 February 2010, am, pp. 83-84; Thomas Balmer, 28 April 2010, am, pp. 4-5, 7, 30 April 2010, am, p. 90; Alan Balmer, 2 June 2010, am, p. 153; Anne Balmer, 15 July 2010, am, pp. 63-70.
[69] Alan Balmer, 2 June 2010, am, pp. 132-147.
[70] Thomas Balmer, 28 April 2010, am, pp. 6, 49, 29 April 2010, am, pp. 1-2; contrast his evidence at 7 May 2010, am, pp. 9-10.
[71] Allison Cumming, 19 November 2009, am, p. 102.
[72] Thomas Balmer, 29 April 2010, am, pp. 2-5.
[73] Thomas Balmer, 29 April 2010, am, pp. 71-72.
[74] Anne Balmer, 15 July 2010, am, pp. 72-73
[75] Sadie Meaney, 18 February 2010, am, pp. 83-84.
[76] Thomas Balmer, 28 April 2010, am, p. 7.
[77] Alan Balmer, 2 June 2010, am, p. 143
[78] Alan Balmer, 2 June 2010, am, pp. 128-130
[79] Alan Balmer, 2 June 2010, am, p. 132-133.
[80] Alan Balmer, 2 June 2010, am, pp. 138-140.
[81] Sadie Meaney, 18 February 2010, am, p. 83.
[82] Alan Balmer 4 June 2010, am, pp. 33-35, 62-64
[83] Alan Balmer, 2 June 2010, am, pp. 142-3.
[84] Alan Balmer, 2 June 2010, am, pp. 134.
[85] Alan Balmer, 2 June 2010, am, pp. 148-149
[86] Alan Balmer, 2 June 2010, am, pp. 141-142.
[87] Alan Balmer, 2 June 2010, am, p. 145-7
[88] Alan Balmer, 3 June 2010, am, pp. 121-123
[89] Alan Balmer, 2 June 2010, am, pp. 151-152; Anne Balmer, 15 July 2010, am, pp. 67-68, 7§-71.
[90] Thomas Balmer, 7 May 2010, am, p. 13.
[91] Thomas Balmer, 7 May 2010, am, p. 13.
[92] Sadie Meaney, 18 February 2010, am, pp. 59-
[93] Sadie Meaney, 19 February 2010, am, p. 46-47.
[94] Pro 404, p. 19; Sadie Meaney, 18 February 2010, am, pp. 73-74.
[95] Sadie Meaney, 18 February 2010, am, p. 87.
[96] Sadie Meaney, 18 February 2010, am, p. 88.
[97] Sadie Meaney, 18 February 2010, am, pp. 72-73.
[98] Sadie Meaney, 18 February 2010, am, pp. 135-136.
[99] Phyllis West, 23 November 2009, am, pp. 56-57; Sadie Meaney, 18 February 2010, am, p. 70.
[100] Sadie Meaney, 18 February 2010, am, pp. 122-123.
[101] Eleanor Ward, 24 November 2009, pm, pp. 4-5; Rosemary Buckley, 25 November 2009, pm, pp. 63-64.
[102] Eleanor Ward, 24 November 2009, pm, pp. 7-16.
[103] Isobel Queen, 1 December 2009, pm, p. 92; 2 December 2009, am, pp. 5-6.
[104] Thomas Balmer, 28 April 2010, am, pp. 50-54.
[105] Allison Cumming, 19 November 2009, am, pp. 2-3.
[106] Thomas Balmer, 5 May 2010, pm, pp. 2-3.
[107] Thomas Balmer, 4 May 2010, am, p. 80.
[108] Thomas Balmer, 4 May 2010, am, p. 80.
[109] Sadie Meaney, 18 February 2010, am, pp. 85-87.
[110] Allison Cumming, 19 November 2009, am, pp. 4-5.
[111] Allison Cumming, 19 November 2009, am, p. 16.
[112] Eleanor Ward, 24 November 2009, am, p. 158.
[113] Allison Cumming, 19 November 2009, am, pp. 17-18.
[114] Phyllis West, 23 November 2009, am, p. 41.
[115] Phyllis West, 23 November 2009, am, pp. 45-48; Eleanor Ward, 24 November 2009, am, p. 165.
[116] Allison Cumming, 19 November 2009, am, p. 16.
[117] Allison Cumming, 19 November 2009, am, p. 19.
[118] Allison Cumming, 19 November 2009, am, p. 18.
[119] Allison Cumming, 19 November 2009, am, pp. 6-7.
[120] Phyllis West, 23 November 2009, am, pp. 41-44.
[121] Phyliis West, 23 November 2009, am, pp. 48-49; Eleanor Ward, 24 November 2009, p. 165.
[122] Phyllis West, 23 November 2009, am, pp. 45-49; Eleanor Ward, 24 November 2009, am, pp. 158, 166-167
[123] Allison Cumming, 19 November 2009, am, p. 12; Sadie Meaney, 19 February 2010, am, p. 53.
[124] Allison Cumming, 19 November 2009, am, pp. 7-8.
[125] Allison Cumming, 19 November 2009, am, pp. 6-8.
[126] Allison Cumming, 19 November 2009, am, pp. 15-16.
[127] Alexis Coster, 24 November 2009, am, pp. 80-81; Catherine Melia, 11 February 2010, pm, p. 59; Sadie Meaney, 22 February 2010, am, p. 89.
[128] Allison Cumming, 19 November 2009, am, p. 3.
[129] Phyllis West, 23 November 2009, am, p. 49.
[130] Eleanor Ward, 24 November 2009, am, p. 165-167.
[131] Allison Cumming, 19 November 2009, am, p. 3
[132] Allison Cumming, 19 November 2009, am, p. 3.
[133] Allison Cumming, 19 November 2009, am, p. 4.
[134] Allison Cumming, 19 November 2009, am, p. 4.
[135] Joseph Clark, 20 January 2010, am, pp. 61-64
[136] Allison Cumming, 19 November 2009, am, p. 4.
[137] Joseph Clark, 20 January 2010, pm, pp. 74-76.
[138] Thomas Balmer, 5 May 2010, pm, p. 37; although see Sadie Meaney, 18 February 2010, pm, pp. 27-28.
[139] This is exemplified by the actions of the staff in connexion with a fire alarm which occurred on the nighsthift in December 2003, when staff telephoned Mr. Clark for guidance: see Chapter 23.
[140] Thomas Balmer, 5 May 2010, pm, p. 37.
[141] Allison Cumming, 19 November 2009, am, p. 8.
[142] Allison Cumming, 19 November 2009, am, p. 8
[143] Yvonne Carlyle, 27 November 2009, am, p. 5.
[144] Yvonne Carlyle, 27 November 2009, am, pp. 42-43.
[145] Allison Cumming, 19 November 2009, am, pp. 13-15, 29-30.
[146] Allison Cumming, 19 November 2009, am, p. 30; Yvonne Carlyle, 27 November 2009, am, pp. 42-43; Tracy Farrer
[147] Allison Cumming, 19 November 2009, am, pp. 35-36.
[148] Phyllis West, 23 November 2009, am, pp. 49-52.
[149] Allison Cumming, 19 November 2009, am, p. 31.
[150] Allison Cumming, 19 November 2009, am, p. 35.
[151] Allison Cumming, 19 November 2009, am, pp. 34-35.
[152] Allison Cumming, 18 November 2009, pm, p. 98.
[153] Phyllis West, 23 November 2009, am, pp. 13-15
[154] Sadie Meaney, 18 February 2010, am, pp. 66-68.
[155] Sadie Meaney, 18 February 2010, am, p. 68, 19 February 2010, am, pp. 96-102, 22 February 2010, am, pp. 129-130.
[156] Pro 318; Isobel Queen, 1 December 2009, pm, pp. 88-90.
[157] Sadie Meaney, 22 February 2010, am, pp. 23-24.
[158] See paras. 8-25 below.
[159] Allison Cumming, 19 November 2009, pm, pp. 10-11. Yvonne Carlyle, 27 November 2009, am, pp. 4-5.
[160] Allison Cumming, 19 November 2009, am, pp. 123-124.
[161] Patricia Taylor, 25 November 2009, am, pp. 106-108
[162] Allison Cumming, 19 November 2009, am, pp. 107-109.
[163] Allison Cumming, 19 November 2009, am, pp. 125-126.
[164] Isobel Caskie, 16 November 2009, pm, pp. 31-35.
[165] Allison Cumming, 19 November 2009, am, pp. 106-107.
[166] Allison Cumming, 19 November 2009, am, pp. 104, 106.
[167] Allison Cumming, 19 November 2009, am, p. 105.
[168] Allison Cumming, 19 November 2009, am, pp. 105-107.
[169] Allison Cumming, 19 November 2009, am, pp. 124-125.
[170] Agnes Crawford, 16 November 2009, pm, pp. 54-56, 59; Allison Cumming, 19 November 2009, am, pp. 121-3.
[171] Gail Stewart, 16 November 2009, pm pp,. 13, 22-23; Allison Cumming, 19 November 2009, am, pp. 109-111.
[172] Allison Cumming, 19 November 2009, am, pp. 111-112.
[173] Allison Cumming, 19 November 2009, am, p. 111.
[174] Jannette Bulloch, 16 November 2009, am, pp. 31-33; Allson Cumming, 19 November 2009, am, pp. 115-116.
[175] Allison Cumming, 19 November 2009, am, pp. 116-117.
[176] Phyllis West, 23 November 2009, am, pp. 32-40.
[177] John Lappin, 16 November 2009, am, pp. 41-42.
[178] Allison Cumming, 19 November 2009, am, pp. 129-132.
[179] Allison Cumming, 19 November 2009, pm, pp. 4-5.
[180] Alllson Cumming, 19 November 2009, am, pp. 58-66, 75, 81-82.
[181] Allison Cumming, 19 November 2009, am, p. 88.
[182] Janette Bowman, 16 November 2009, am, pp. 51-52, 54; Allison Cumming, 19 November 2009, am, pp. 132-133, pm, pp. 2-3.
[183] Patrick McGuire, 17 November 2009, am, p. 3.
[184] Patrick McGuire, 17 November 2009, am, p. 5.
[185] Patrick McGuire, 17 November 2009, am, pp. 8-9.
[186] Patrick McGuire, 17 November 2009, am, p. 9; Allison Cumming, 19 November 2009, am, pp. 92-94.
[187] Allison Cumming, 19 November 2009, am, pp. 94-95.
[188] Agnes McWee, 16 November 2009, am, pp. 68-69.
[189] Agnes McWee, 16 November 2009, am, pp. 73-75; Allison Cumming, 19 November 2009, am, pp. 127-128,
[190] Allison Cumming, 19 November 2009, am, pp. 128-129.
[191] Deborah Milne, 16 November 2009, am, pp. 132-134; Allison Cumming, 19 November 2009, am, pp. 89-90.
[192] Allison Cumming, 19 November 2009, am, pp. 90-91.
[193] Phyllis West, 23 November 2009, pm, p. 29.
[194] Helen Carpenter, 16 November 2009, pm, p. 2; Allison Cumming, 19 Novemmber 2009, am, pp. 96-
[195] Allison Cumming, 19 November 2009, am, p. 98.
[196] Allison Cumming, 19 November 2009, am, pp. 98-99.
[197] Madeleine Asken, 16 November 2009, am, pp. 12-13, 22; Allison Cumming, 19 November 2009, am, pp. 118-119.
[198] Madeleine Asken, 16 November 2009, am, p. 13; Allison Cumming 19 November 2009, am, p. 121.
[199] Allison Cumming, 19 November 2009, am, pp. 119-121.
[200] Madeleine Asken, 16 November 2009, am, p. 26.
[201] Thomas Balmer, 28 April 2010, am, pp. 9-11.
[202] Thomas Balmer, 28 April 2010, am, pp. 8, 11-12.
[203] Thomas Balmer, 28 April 2010, am, pp. 8-9.
[204] Anne Balmer, 15 July 2010, am, pp. 57-58.
[205] Thomas Balmer, 28 April 2010, am, p. 11.
[206] Thomas Balmer, 28 April 2010, am, pp. 14-17.
[207] Thomas Balmer, 28 April 2010, am, pp. 17-18.
[208] Thomas Balmer, 28 April 2010, am, p. 21.
[209] Thomas Balmer, 28 April 2010, am, pp. 20-21.
[210] William Dickie, 12 January 2010, am, p. 157.
[211] Thomas Balmer, 28 April 2010, am, p. 18.
[212] Thomas Balmer, 28 April 2010, am, p. 81.
[213] Pro 817, p. 240; Thomas Balmer, 28 April 2010, am, pp. 18-19.
[214] Pro 817, p. 241; Thomas Balmer, 28 April 2010, am, pp. 22-23.
[215] Pro 807, p. 5; Pro 815, p. 43 (manuscript) Thomas Balmer, 28 April 2010, am, pp. 22, 67, 81-84.
[216] Pro 1107, p. 4; William Dickie, 12 January 2010, pm, pp. 8-12; Thomas Balmer, 28 April 2010, am, pp. 83-85.
[217] 1107, pp. 31-32; William Dickie, 12 January 2010, pm, pp. 83-85.
[218] William Dickie, 12 January 2010, pm, pp. 89-94; John Murray, 14 January 2010, pm, pp. 61-70. .
[219] Pro 1107, p. 36; William Dickie, 12 January 2010, pm, pp. 12-14; Thomas Balmer, 28 April 2010, am, pp. 88-89.
[220] William Dickie, 13 January 2010, am, pp. 82-83.
[221] William Dickie, 13 January 2010, am, pp. 53-57
[222] Alexander Ross, 27 January 2010, pm, pp. 70-71.
[223] Pro 1107, p. 70; Pro 1106, p. 4; William Dickie, 12 January 2010, pm, pp. 42-49; 94-97.
[224] William Dickie, 12 January 2010, pm, pp. 83-94; John Murray, 14 January 2010, pm, pp. 61-70.
[225] Thomas Sorbie.
[226] John Spencely, 23 July 2010, am, pp. 29-30.
[227] William Dickie, 13 January 2010, am, pp. 53-57.
[228] Alexander Ross, 26 January 2010, pm, pp. 69-73, 76-78.
[229] John Spencely, 23 July 2010, am, pp. 34-39, 43-44, 81-82.
[230] William Dickie, 12 January 2010, pm, pp. 26, 71-74, 14 January 2010, am, pp. 176-end; pm, pp. 1-8; John Spencely, 23 July 2010, am, pp. 34-36
[231] John Spencely, 23 July 2010, am, pp. 39-42.
[232] Pro 1291, p. 4; Hugh Gibb, 3 February 2010, am, p. 142;Thomas Balmer, 28 April 2010, am, pp. 96-97
[233] Thomas Balmer, 28 April 2010, am, pp. 67-68.
[234] Thomas Balmer, 28 April 2010, am, pp. 86-88.
[235] Thomas Balmer, 28 April 2010, am, pp. 90-93, 100.
[236] Iain Fothringham, 15 January 2010, am, pp. 16-21; Thomas Balmer, 28 April 2010, am, pp. 93-94, pm, pp. 64-65.
[237] Thomas Balmer, 28 April 2010, am, pp. 114-115, 119-120, pm, pp. 10-11.
[238] Thomas Balmer, 28 April 2010, pm, p. 12.
[239] Thomas Balmer, 28 April 2010, am, pp. 116-119.
[240] Thomas Balmer, 28 April 2010, am, pp. 116-117.
[241] Thomas Balmer, 28 April 2010, pm, pp. 12-13.
[242] Alexander Ross, 26 January 2010, pm, p. 47; George Harvie, 29 January 2010, am, p. 43; Thomas Balmer, 28 April 2010, am, pp. 103-112.
[243] George Harvie, 29 January 2010, am, pp. 42-43.
[244] Thomas Balmer, 28 April 2010, pm, pp. 30-31.
[245] Thomas Balmer, 28 April 2010, am, pp. 112-113.
[246] Thomas Balmer, 28 April 2010, am, p. 100; see also George Harvie, 29 January 2010, am, pp. 40-41.
[247] Thomas Balmer, 28 April 2010, am, p. 113,
[248] Thomas Balmer, 28 April 2010, am, p. 101.
[249] Thomas Balmer, 28 April 2010, am, pp. 110-111; 29 April 2010, am, p. 25.
[250] Thomas Balmer, 29 April 2010, am, pp. 21-23.
[251] George Harvie, 29 January 2010, am, pp. Thomas Balmer, 28 April 2010, am, pp. 97-99.
[252] Alexander Ross, 26 January 2010, pm, pp. 37-38, 28 January 2010, am, pp. 51-52, pm, pp. 51-55; George Harvie, 29 January 2010, am, p. 47; Thomas Balmer, 28 April 2010, pm, p. 58; 29 April 2010, am, pp. 10-11..
[253] Alexander Ross, 28 January 2010, pm, pp. 57-58; Thomas Balmer, 28 April 2010, pm, pp. 58-59.
[254] Alexander Ross, 26 January 2010, pm, p. 38; George Harvie, 29 January 2010, am, pp. 48-49.
[255] George Harvie, 29 January 2010, am, p. 49.
[256] George Harvie, 29 January 2010, am, pp. 125-126.
[257] Alexander Ross, 26 January 2010, pm, pp. 59-60.
[258] Thomas Balmer, 28 April 2010, pm, pp. 54-55; 29 April 2010, am, p. 6; Alexander Ross, 26 January 2010, pm, pp. 69-73.
[259] Alexander Ross, 26 January 2010, pm, pp. 47-48, 77-78; George Harvie, 29 January 2010, am, p. 46; Thomas Balmer 28 April 2010, pm, pp. 56-57; 29 April 2010, am, pp. 6-7.
[260] Alexander Ross, 26 January 2010, pm, pp. 76-78.
[261] Alexander Ross, 26 January 2010, pm, pp. 57-60.
[262] Alexander Ross, 27 January 2010, am, pp. 17-19.
[263] Alexander Ross, 26 January 2010, pm, pp. 57-58.
[264] George Harvie, 29 January 2010, pm, pp. 10-11, 16
[265] Thomas Balmer, 28 April 2010, pm, pp. 64-68; 29 April 2010, am, pp. 35-37.
[266] Thomas Balmer, 28 April 2010, pm, pp. 68-69.
[267] Thomas Balmer, 29 April 2010, am, p. 33
[268] George Harvie, 29 January 2010, pm, p. 31
[269] Alexander Ross, 26 January 2010, pm, pp. 45, 102; George Harvie, 29 January 2010, pm, pp. ; 2 February 2010, am, p. 40-42.
[270] Alexander Ross, 27 January 2010, pm, pp. 96-100.
[271] Alexander Ross, 27 January 2010, am, pp. 67-68.
[272] Alexander Ross, 26 January 2010, pm, pp. 45, 100-101.
[273] Alexander Ross, 27 January 2010, am, pp. 40-41.
[274] George Harvie, 29 January 2010, pm, pp. 38-45.
[275] George Harvie, 29 January 2010, pm, pp. 38-39
[276] George Harvie, 29 January 2010, pm, p. 16
[277] George Harvie, 29 January 2010, pm, pp. 19-20.
[278] George Harvie, 2 February 2010, am, pp. 28-29.
[279] George Harvie, 29 January 2010, pm, pp. 18-24.
[280] Alexander Ross, 27 January 2010, am, pp. 42-45, 68-72; George Harvie, 29 January 2010, pm, pp. 34-37; Thomas Balmer, 28 April 2010, pm, p. 70.
[281] Alexander Ross, 27 January 2010, am, pp. 60-64.
[282] Alexander Ross, 27 January 2010, am, p. 73.
[283] Alexander Ross, 27 January 2010, am, pp. 83-84.
[284] Alexander Ross, 27 January 2010, am, pp. 49-60, 84-85; George Harvie, 29 January 2010, pm, pp. 37-38.
[285] Alexander Ross, 27 January 2010, am, pp. 92-95, 98-99.
[286] Alexander Ross, 27 January 2010, am, p. 87; see also George Harvie, 29 January 2010, pm, p. 38.
[287] Alexander Ross, 27 January 2010, am, pp. 89=91.
[288] Thomas Balmer, 29 April 2010, am, pp. 31-32.
[289] Thomas Balmer, 28 April 2010, pm, pp. 71-72, 76, 80-86; 29 April 2010, am, pp. 31-33, 38-39.
[290] Thomas Balmer, 28 April 2010, pm, p. 85.
[291] Thomas Balmer, 28 April 2010, pm, pp. 71-72, 76, 80-86; 29 April 2010, am, pp. 31-33, 38-39.
[292] Pro 1106, p. 8; William Dickie,
[293] Pro 1106, p. 7.
[294] William Dickie, 13 January 2010, am, pp. 81-82.
[295] George Harvie, 29 January 2010, am, p. 44; Iain Fothringham; cf Alexander Ross, 26 January 2010, pm, pp. 48-51.
[296] William Dickie, 12 January 2010, pm, p. 76-78
[297] Thomas Balmer, 28 April 2010, pm, p. 18.
[298] Thomas Balmer, 28 April 2010, pm, p. 21.
[299] Thomas Balmer, 28 April 2010, pm, p. 22.
[300] Thomas Balmer, 28 April 2010, pm, p. 20.
[301] William Dickie, 12 January 2010, pm, pp. 77-78; Thomas Balmer, 28 April 2010, pm, p. 21.
[302] John Murray, 14 January 2010, pm, pp 77-78.
[303] Thomas Balmer, 28 April 2010, pm, pp. 26, 27.
[304] For the distinction, see William Dickie, 12 January 2010, am pp. 147-155.
[305] Thomas Balmer, 28 April 2010, pm, p. 24.
[306] Thomas Balmer, 28 April 2010, pm, p. 23
[307] Thomas Balmer, 28 April 2010, pm, pp. 39-40.
[308] William Dickie, 12 January 2010, am, pp. 147-155, pm, pp. 73-74.
[309] William Dickie, 12 January 2010, pm, pp. 25-26; 14 January 2010, pm, pp. 1-8; see also John Spencely, 23 July 2010, am, pp. 44-46, 81-82.
[310] William Dickie, 13 January 2010, am, pp. 56-59.
[311] George Harvie, 2 February 2010, am, p. 52.
[312] John Spencely, 23 July 2010, am, pp. 28-29.
[313] Thomas Balmer, 28 April 2010, pm, pp. 27-29.
[314] Pro 1414, Chapter 61 (p. 114); Alexander Ross, 27 January 2010, pm, pp. 70-72
[315] Pro 1414, 614-1 (p. 116); Alexander Ross, 27 January 2010, pm, p. 73.
[316] Alexander Ross, 27 January 2010, pm, p. 76, 28 January 2010, am, p. 17.
[317] Alexander Ross, 28 January 2010, am, p. 17.
[318] George Harvie, 29 January 2010, am, p. 100.
[319] George Harvie, 29 January 2010, am, pp. 78-83, 100-111, 119-120.
[320] Thomas Balmer, 28 April 2010, pm, pp. 59-66.
[321] George Harvie, 29 January 2010, pm, p. 6.
[322] Pro 1107, p. 7.
[323] Carol Ann Brown, 12 August 1020, am, pp. 6-7.
[324] Pro 1415, p. 251; Alexander Ross, 28 January 2010, am, pp. 29-30.
[325] Thomas Balmer, 30 April 2010, pm, p. 40; see also 10 May 2010, am, pp. 114-130, pm, pp. 1-2.
[326] William Dickie, 13 January 2010, pp. 91-92; John Murray, 14 January 2010, pm, pp. 70-74.
[327] William Dickie, 13 January 2010, am, pp. 87-91.
[328] Pro 1107, p. 6.
[329] John Murray, 14 January 2010, pm, pp. 70-73.
[330] Thomas Balmer, 28 April 2010, pm, pp. 40-41.
[331] John Murray, 14 January 2010, pm, pp. 74-77.
[332] William Dickie, 13 January 2010, am, pp. 87-110, 118-119.
[333] Hugh Gibb, 3 February 2010, am, p. 133.
[334] Hugh Gibb, 3 February 2010,pm, pp. 16-17
[335] Hugh Gibb, 3 February 2010, pm, p. 18-19
[336] Hugh Gibb, 3 February 2010, pm, pp. 20-23.
[337] Hugh Gibb, 3 Feburary 2010, pm, p. 23; cp Thomas Balmer, 28 April 2010, pm, p. 44.
[338] Hugh Gibb, 3 February 2010, pm, pp. 26-30.
[339] Pro 1107, p. 8; William Dickie, 13 January 2010, am, p. 112.
[340] Pro 817, p. 238; Thomas Balmer, 28 April 2010, am, pp. 24-26.
[341] Pro 817, p. 235; Thomas Balmer, 28 April 2010, am, pp. 27-34.
[342] Pro 815 p. 59 (manuscript); Thomas Balmer, 28 April 2010, am, pp. 59-61.
[343] Pro 1094, p. 19; Thomas Balmer, 28 April 2010, am, pp. 61-63.
[344] Thomas McNeilly, 22 January 2010, am, pp. 129-131
[345] Thomas McNeilly, 22 January 2010, am pp. 127-128, 130; Thomas Balmer, 29 April 2010, am, pp. 40-41
[346] Iain Fothringham, 15 January 2010, am, pp. 80-81; Thomas McNeilly, 22 January 2010, am, pp. 139-140; Thomas Balmer, 29 April 2010, am, pp. 41-43.
[347] Thomas Balmer, 29 April 2010, am, pp. 43-45; Anne Balmer, 15 July 2010, am, p. 105.
[348] Thomas Balmer, 29 April 2010, am, p. 44
[349] Thomas Balmer, 29 April 2010, am, p. 94.
[350] Thomas Balmer, 29 April 2010, am, pp. 51-53.
[351] William Dickie, 12 January 2010, pm, p. 34.
[352] Iain Fothringham, 15 January 2010, am, pp. 114-115, 126-127.
[353] Pro 815, p. 36; Thomas Balmer, 28 April 2010, am, pp. 63-67.
[354] Thomas Balmer, 28 April 2010, am, p. 66.
[355] Thomas Balmer, 28 April 2010, am, p. 66.
[356] Thomas Balmer, 29 April 2010, am, pp. 45-46.
[357] Thomas Balmer, 29 April 2010, am, pp. 46-47
[358] Pro 815, p. 50 (manuscript); Thomas Balmer, 28 April 2010, am, pp. 69-70
[359] Pro 815, p. 24 (manuscript); Thomas Balmer, 28 April 2010, am, pp. 71-73.
[360] Thomas Balmer, 28 April 2010, am, p. 74.
[361] Pro 815, pp. 29-30; Thomas Balmer, 28 April 2010, am, p. 77.
[362] Pro 213, p. 4; Thomas Balmer, 29 April 2010, am, pp. 47-48.
[363] Pro 815, p. 131 (manuscript); Thomas Balmer, 28 April 2010, am, pp. 74-7
[364] Thomas McNeilly, 22 January 2010, pm, pp. 81-82.
[365] Thomas McNeilly, 22 January 2010, pm, pp. 71-78; 82-84.
[366] Norman Macdonald, 20 July 2010, am, p. 6.
[367] Norman Macdonald, 20 July 2010, am, pp. 6-7.
[368] Martin Shipp
[369] Norman Macdonald, 20 July 2010, am, pp. 6-7, 15
[370] Norman Macdonald, 20 July 2010, am, p. 14.
[371] Norman Macdonald, 20 July 2010, am, pp. 7-8
[372] Norman Macdonald, 20 July 2010, am, p. 12.
[373] Norman Macdonald, 20 July 2010, am, pp. 11-12.
[374] Norman Macdonald, 20 July 2010, am, pp. 16-19.
[375] Para. 8.3; Norman Macdonald, 20 July 2010, am, p. 20
[376] Norman Macdonald, 20 July 2010, am, p. 21-27.
[377] Norman Macdonald, 20 July 2010, am, p. 37.
[378] Pro 1593, p. 29; Norman Macdonald, 20 July 2010, am, pp. 28-36
[379] Stanley Wilson, 3 February 2010, am, pp. 7-8.
[380] Stanley Wilson, 3 February 2010, am, p. 8.
[381] Stuart Mortimore, 11 March 2010, am, pp. 68-72.
[382] Stuart Mortimore, 17 March 2010, am, p. 48.
[383] Stuart Mortimore, 17 March 2010, am, pp. 38-39, under reference to p. 4 of Pro 1106.
[384] Stanley Wilson, 3 February 2010, am, p. 7.
[385] Stanley Wilson, 3 February 2010, am, pp. 9-10.
[386] Hamish Brodie, 16 December 2009, pm, p. 23.
[387] Hamish Brodie, 16 December 2009, pm, pp. 23-25, 29-30.
[388] Hamish Brodie, 16 December 2009, pm, pp. 25-26.
[389] Hamish Brodie, 16 December 2009, pm, pp. 29, 34-35
[390] Hamish Brodie, 16 December 2009, pm, pp. 17-18, 40-41,
[391] Hamish Brodie, 16 December 2009, pm, pp. 14-17.
[392] Hamish Brodie, 16 December 2009, pm, pp. 55-56.
[393] Hamish Brodie, 16 December 2009, pm, pp. 55, 68; Stanley Wilson, 3 February 2010, am, p. 15.
[394] Hamish Brodie, 16 December 2009, pm, pp. 25-26, 30, 31-32, 35, 51-53; Stuart Mortimore, 11 March 2010, pm, p. 96.
[395] Hamish Brodie, 16 December 2009, pm, pp. 32, 35; Stuart Mortimore, 11 March 2010, pm, p. 96.
[396] Hamish Brodie, 16 December 2009, pm, pp. 51-54.
[397] Alexander Ross, 27 January 2010, am, pp. 97-98.
[398] Iain Fothringham, 18 January 2010, am, pp. 111-112.
[399] Iain Fothringham, 15 January 2010, am, pp. 16-21.
[400] Iain Fothringham, 15 January 2010, am, pp. 98-101.
[401] George Muir, 20 January 2010, am, pp. 22-23.
[402] Iain Fothringham, 15 January 2010, am, pp. 102-105.
[403] Julian Norris, 7 January 2010, am, p. 35.
[404] Julian Norris, 7 January 2010, am, pp. 39-41.
[405] Julian Norris, 7 January 2010, am, p. 36.
[406] Julian Norris, 7 January 2010, am, pp. 37-38.
[407] Julian Norris, 7 January 2010, am, pp. 36, 38.
[408] Julian Norris, 7 January 2010, am, pp. 36-37.
[409] Thomas Balmer, 30 April 2010, am, p. 74.
[410] Tholmas Balmer, 30 April 2010, am, p. 75.
[411] Iain Fothringham, 15 January 2010, pm, p. 31.
[412] Iain Fothringham, 15 January 2010, pm, pp. 90-95, 18 January 2010, am, p. 163.
[413] Iain Fothringham, 15 January 2010, am, pp. 127-129, 137, 18 January 2010, pm, pp. 8-9.
[414] Iain Fothringham, 15 January 2010, am, pp. 128, 148.
[415] Iain Fothringham, 16 January 2010, am, pp. 99-102.
[416] Iain Fothringham, 15 January 2010, am, p. 127.
[417] Iain Fothringham, 15 January 2010, am, pp. 144-145.
[418] Iain Fothringham, 15 January 2010, am, p. 145.
[419] Iain Fothringham, 15 January 2010, am, p. 145.
[420] Iain Fothringham, 15 January 2010, am, p. 166.
[421] Iain Fothringham, 16 January 2010, am, p. 86.
[422] Iain Fothringham, 15 January 2010, am, pp. 128-129; 18 January 2010, am, pp. 40, 86, pm, p. 9.
[423] Iain Fothringham, 15 January 2010, pm, pp. 22-24.
[424] Iain Fothringham, 15 January 2010, am, pp. 151-160.
[425] Iain Fothringham, 15 January 2010, am, pp. 159-164; 18 January 2010, am, pp. 35-40, 88-90.
[426] Iain Fothringham, 15 January 2010, pm, pp. 70-76.
[427] Pro 215, p. 27; Iain Fothringham, 15 January 2010, am, pp. 21-24.
[428] Pro 215, p. 4; Iain Fothringham, 15 January 2010, am, pp. 24-27.
[429] Iain Fothringham, 15 January 2010, am, p. 26; Thomas Balmer, 30 April 2010, am, pp. 101-102.
[430] Iain Fothringham, 15 January 2010, am, pp. 35-42, 138-139.
[431] Iain Fothringham, 15 January 2010, am, pp. 138-142.
[432] Iain Fothringham, 15 January 2010, am, pp. 43-47, 56-66.
[433] Iain Fothringham, 15 January 2010, am, pp. 33-34.
[434] Pro 1, p. 23; George Muir, 18 January 2010, pm, pp. 53-55; Alan Balmer, 2 June 2010, pm, pp. 66-68.
[435] Joseph Clark, 20 January 2010, pm, pp. 69-70; Sadie Meaney, 18 February 2010, am, pp. 114-115.
[436] Joseph Clark, 20 January 2010, pm, p. 76.
[437] Joseph Clark, 20 January 2010, pm, p. 78.
[438] Joseph Clark, 20 January 2010, pm, pp. 83-91.
[439] Iain Fothringham, 15 January 2010, pm, pp. 41-44.
[440] Iain Fothringham, 15 January 2010, pm, pp. 37-48.
[441] Iain Fothringham, 15 January 2010, pm, pp. 48-50.
[442] George Muir 18 January 2010, pm, pp. 58-68; Alan Balmer, 2 June 2010, pm, pp. 60-66.
[443] George Muir, 20 January 2010, am, p. 5.
[444] George Muir, 18 January 2010, pm, pp. 68-78
[445] George Muir, 18 January 2010, pm, pp. 81-83; Thomas Balmer, 30 April 2010, am, p. 74; 6 May 2010, am, pp. 44-45.
[446] George Muir, 20 January 2010, pm, pp. 5-10.
[447] George Muir, 18 January 2010, pm, pp. 78-80, 84-85, 100-102; 20 January 2010, am, p. 41.
[448] Sadie Meaney, 23 February 2010, pm, pp. 21-23.
[449] Sadie Meaney, 23 February 2010, pm, p. 17.
[450] George Muir, 20 January 2010, am, p. 5.
[451] George Muir, 18 January 2010, pm, pp. 79-81
[452] George Muir, 18 January 2010, pm, pp. 85, 106; 20 January 2010, am, pp. 10-11, 17-18, 20-21.
[453] George Muir, 18 January 2010, pm, pp. 105-108; 20 January 2010, am pp. 18-19.
[454] Sadie Meaney, 23 February 2010, pm, pp. 24-25.
[455] George Muir, 20 January 2010, am, pp. 3, 19, 25, 41-43.
[456] Sadie Meaney, 23 February 2010, pm, pp. 20-21.
[457] 6 May 2010, am, pp. 62-63.
[458] Thomas Balmer, 6 May 2010, am, pp. 67-72, 78.
[459] Thomas Balmer, 6 May 2010, am, pp. 83-84
[460] Thomas Balmer 6 May 2010, am, pp. 64, 88-89
[461] Thomas Balmer, 6 May 2010, am, pp. 86-88.
[462] George Muir, 20 January 2010, am, pp. 47-48.
[463] Sadie Meaney, 23 February 2010, pm, pp. 14-20.
[464] Mhairi Sadiq.
[465] George Muir, 18 January 2010, pm, pp. 95, 100-101.
[466] Joseph Clark, 20 January 2010, pm, pp. 91-92.
[467] Julian Norris 7 January 2010, am, p. 93.
[468] Julian Norris, 22 December 2009, pm, p. 9.
[469] Julian Norris, 22 December 2009, pm, pp. 9-10.
[470] Julian Norris, 22 December 2009, pm, p. 14.
[471] Julian Norris, 22 December 2009, am, p. 84.
[472] Julian Norris, 6 January 2010, pm, p. 31.
[473] Iain Fothrigham, 15 January 2010, pm, pp. 45-47; Julian Norris, 6 January 2010, am, p. 19.
[474] Julian Norris, 22 December 2009, pm, p. 38.
[475] Julian Norris, 6 January 2010, am, p. 71.
[476] Yvonne Carlyle, 27 November 2009, am, pp. 139-141; Julian Norris, 22 December 2009, pm, p.38, 6 January 2010, am, p. 19.
[477] Julian Norris, 22 December 2009, pm, p. 39.
[478] Julian Norris, 22 December 2009, pm, p. 39, 6 January 2010, am, pp. 20-21.
[479] Julian Norris, 6 January 2010, am, p. 38.
[480] Julian Norris, 6 January 2010, am, pp. 21-22.
[481] Julian Norris, 6 January 2010, am, pp. 22-23.
[482] Julian Norris, 6 January 2010, am, p. 23.
[483] Julian Norris, 6 January 2010, am, p. 26; Colin Todd, 29 July 2010, am, pp. 6-9.
[484] Colin Todd, 26 July 2010, am, pp. 25-28.
[485] Julian Norris, 6 January 2010, am, pp. 31-35.
[486] Julian Norris, 6 January 2010, am, pp. 35-36
[487] Julian Norris, 6 January 2010, am, pp. 23-25.
[488] Julian Norris, 6 January 2010, am, pp. 57-58.
[489] Julian Norris, 6 January 2010, am, pp. 37-53
[490] Julian Norris, 6 January 2010, am, pp. 53-55
[491] Julian Norris, 22 December 2009, pm, p. 40-41.
[492] Iain Fothringham, 15 January 2010, pm, pp. 27-28; 18 January 1010, pm, pp. 1-3.
[493] Julian Norris, 22 December 2009, pm, pp. 45-46; cf para. 15.4.3 of BS 5839 of 1988 (Pro 1592): Julian Norris, 22 December 2009, am, pp. 117-120, 7 January 2010, am, pp. 52-57.
[494] Julian Norris, 22 December 2009, pm, p. 43.
[495] Julian Norris, 6 January 2010, am, p. 111.
[496] Iain Fothringham, 15 January 2010, pm, pp. 22-24.
[497] Julian Norris, 22 December 2009, pm, pp. 29-31.
[498] Julian Norris, 22 December 2009, pm, pp. 29-31.
[499] Julian Norris, 22 December 2009, pm, pp. 28-29.
[500] Julian Norris, 22 December 2009, pm, pp. 33-34.
[501] Julian Norris, 22 December 2009, pm, p. 63.
[502] Julian Norris, 22 December 2009, pm, p. 55, 6 January 2010, am, p. 101.
[503] Julian Norris, 22 December 2009, pm, p. 61, 6 January 2010, am, p. 101.
[504] Julian Norris, 22 December 2009, pm, p. 61.
[505] Julian Norris, 22 December 2009, pm, p. 61.
[506] Julian Norris, 22 December 2009, pm, p. 62.
[507] Julian Norris, 22 December 2009, pm, pp. 53, 6 January 2010, am, p. 101.
[508] Julian Norris, 22 December 2009, pm, pp. 31, 32, 53, 6 January 2010, am, p. 101.
[509] Julian Norris, 22 December 2009, pm, pp. 31, 32, 53, 6 January 2010, am, p. 101.
[510] Julian Norris, 22 December 2009, pm, pp. 53-54, 60.
[511] Julian Norris, 22 December 2009, pm, pp. 59-60, 6 January 2010, am, p. 101.
[512] Julian Norris, 22 December 2009, pm, p. 61, 6 January 2010, am, p. 101.
[513] Julian Norris, 22 December 2009, pm, p. 61, 6 January 2010, am, p. 101.
[514] Julian Norris, 22 December 2009, pm, p. 55.
[515] Julian Norris, 22 December 2009, pm, pp. 66-67.
[516] Julian Norris, 6 January 2010, am, pp. 85-95.
[517] Julian Norris, 22 December 2009, pm, pp. 47-49; Thomas Balmer, 30 April 2010, am, pp 83, 84.
[518] Iain Fothringham, 15 January 2010, pm, p. 4.
[519] Julian Norris, 7 January 2010, am, p. 139; Iain Fothringham, 15 January 2010, pm, pp. 2-3.
[520] Julian Norris, 22 December 2009, pm, p. 65; Iain Fothringham, 15 January 2010, pm, p. 10.
[521] Julian Norris, 7 January 2010, am, pp. 96-97.
[522] Colin Todd, 26 July 2010, am, pp. 127-129.
[523] Julian Norris, 22 December 2009, pm, pp. 62-63; Iain Fothringham, 15 January 2010, pm, pp. 16-17; Colin Todd, 26 July 2010, am, pp. 129-130.
[524] Julian Norris, 22 December 2009, pm, pp. 64-65; Thomas Balmer, 30 April 2010, am, p. 82.
[525] Thomas Balmer, 30 April 2010, am, p. 87; Colin Todd, 26 July 2010, am, pp. 130-132.
[526] Colin Todd, 26 July 2010, am, p. 132.
[527] Iain Fothringham, 18 January 2010, am, pp. 131-135.
[528] Julian Norris, 22 December 2009, pm, p. 41.
[529] Julian Norris, 22 December 2009, pm, pp. 12-13.
[530] Julian Norris, 22 December 2009, pm, p. 42-43, 6 January 2010, pm, pp. 25-27
[531] Julian Norris, 22 December 2009, pm, pp. 41-42, 6 January 2010, pm, pp. 28-31.
[532] Julian Norris, 6 January 2010, am, pp. 49-50; Colin Todd, 26 July 2010, pm, pp. 20-22.
[533] Julian Norris, 6 January 2010, am, p. 104
[534] Julian Norris, 22 December 2009, pm, pp. 15-17.
[535] Julian Norris, 6 January 2010, am, pp. 29-31.
[536] Julian Norris, 6 January 2010, am, p. 104.
[537] Julian Norris, 6 January 2010, am, p. 104-5, 107-108.
[538] Julian Norris, 6 January 2010, am, pp. 30-31, 48-49, 105-108.
[539] Julian Norris, 6 January 2010, am, p. 49.
[540] Julian Norris, 6 January 2010, am, pp. 42, 50-51.
[541] Julian Norris, 7 January 2010, am, pp. 134-137, pm, p. 9.
[542] Colin Todd, 26 July 2010, am, pp. 22-25
[543] Julian Norris, 6 January 2010, am, p. 43; Colin Todd, 26 July 2010, pm, p. 29.
[544] Colin Todd, 26 July 2010, pm, p. 30.
[545] Iain Fothringham, 15 January 2010, pm, pp. 52-54.
[546] Iain Fothringham, 15 January 2010, pm, pp. 54-61; 18 January 2010, am, pp. 193-196.
[547] Julian Norris, 6 January 2010, pm, p. 64.
[548] Julian Norris, 6 January 2010, pm, pp. 32-33, 49.
[549] Julian Norris, 6 January 2010, pm, p. 48.
[550] Julian Norris, 6 January 2010, pm, p. 50.
[551] Julian Norris, 22 December 2009, pm, pp. 44-45, 58-59, 6 January 2010, pm, p. 52.
[552] Julian Norris, 6 January 2010, am, p. 96.
[553] Julian Norris, 6 January 2010, pm, pp. 21-22.
[554] Julian Norris, 6 January 2010, pm, p. 51.
[555] Julian Norris, 6 January 2010, pm, p. 39.
[556] Julian Norris, 6 January 2010, pm, pp. 46-48.
[557] Julian Norrs, 6 January 2010, pm, p. 53.
[558] Julian Norris, 6 January 2010, pm, p. 59
[559] Julian Norris, 6 January 2010, pm, pp. 43-44.
[560] Julian Norris, 6 January 2010, am, pp. 76-82
[561] Julian Norris, 6 January 2010, am, p. 79
[562] Julian Norris, 6 January 2010, am, pp. 80-82.
[563] Allison Cumming, 19 November 2009, am, pp. 40-41.
[564] Allison Cumming, 19 November 2009, am, pp. 41-42.
[565] Yvonne Carlyle, 27 November 2009, am, p. 11.
[566] Yvonne Carlyle, 27 November 2009, am, pp. 11-12.
[567] Yvonne Carlyle, 27 November 2009, am, pp. 69.
[568] George Muir, 18 January 2010, pm, pp. 42-49, 52.
[569] Linda Anderson, 10 March 2010, pm, pp. 33-34; John Madden, 29 March 2010, pm, p. 2.
[570] Linda Anderson, 10 March 2010, pm, p. 34.
[571] John Madden, 29 March 2010, am, pp. 98-99.
[572] John Madden, 29 March 2010, am, p. 99.
[573] Stuart Mortimore, 11 March 2010, pm, p. 26.
[574] See, for further detail on the power supply to the washing machines, Chapter 11, paras. 31 ff.
[575] Thomas Balmer, 4 May 2010, am, p. 2/
[576] Duncan McRae, 26 January 2010, am, pp. 90-95; Thomas Balmer, 4 May 2010, am, p. 6.
[577] Joseph Clark, 20 January 2010, am, pp.131-132, 149; Thomas Balmer, 4 May 2010, am, pp. 7-8.
[578] Duncan McRae, 26 January 2010, am, pp. 139-142.
[579] Duncan McRae, 26 January 2010, am, pp. 98-103; the 903 was found following the fire to be bolted to the plinth: John Madden, 29 March 2010, pm, pp. 15-16.
[580] Duncan McRae, 26 January 2010, am, p. 103, pm, p. 15.
[581] Duncan McRae, 26 January 2010, am, pp. 103-104.
[582] Duncan McRae, 26 January 2010, am, pp. 104-107.
[583] Duncan McRae, 26 January 2010, am, p. 153.
[584] Duncan McRae, 26 January 2010, am, pp. 104-115.
[585] Duncan McRae, 26 January 2010, am, pp. 115, 124-125, 153-154.
[586] Joseph Clark, 20 January 2010, am, p. 154.
[587] Thomas Balmer, 4 May 2010, am, pp. 17-18.
[588] Duncan McRae, 26 January 2010, am, pp. 137-147
[589] Duncan McRae, 26 January 2010, am, pp. 147-149, 155-157, pm, pp. 8-9.
[590] Alan Hazlehurst, 27 April 2010, am, pp. 39-41.
[591] Alan Hazlehurst, 27 April 2010, am, pp. 41-44.
[592] Alan Hazlehurst, 27 April 2010, am, pp. 44-47.
[593] John Madden, 29 March 2010, pm, pp. 44-45.
[594] John Madden, 29 March 2010, pm, pp. 5-6; Alan Hazlehurst, 27 April 2010, am, pp. 41-42.
[595] John Madden, 29 March 2010, pm, p. 6.
[596] John Madden, 29 March 2010, pm, pp. 28-29.
[597] John Madden, 29 March 2010, pm, p. 49.
[598] John Madden, 29 March 2010, pm, pp. 6-12.
[599] John Madden, 29 March 2010, pm, pp. 9-12.
[600] John Madden, 29 March 2010, pm, pp. 23-24.
[601] John Madden, 29 March 2010, pm, pp. 24-25.
[602] John Madden, 29 March 2010, pm, pp. 25-26.
[603] John Madden, 29 March 2010, pm, pp. 27-29.
[604] John Madden, 29 March 2010, pm, pp. 29-31.
[605] John Madden, 29 March 2010, pm, p. 32.
[606] John Madden, 29 March 2010, pm, pp. 49-50.
[607] John Madden, 29 March 2010, pm, pp. 22-23.
[608] John Madden, 29 March 2010, pm, pp. 33-34.
[609] John Madden, 29 March 2010, pm, pp. 49-51.
[610] Linda Anderson, 10 March 2010, pm, p. 36.
[611] Linda Anderson, 10 March 2010, pm, pp. 36-47.
[612] Tracey Farrer, 24 November 2009, am, pp. 121, 125-126; Sheila Lees, 18 March 2010, pm, pp. 56, 58.
[613] Tracey Farrer, 24 November 2009, am, pp. 128-129; Sheila Lees, 18 March 2010, pm, pp. 57-58.
[614] Tracey Farrer, 24 November 2009, am, pp. 135-136; Sheila Lees, 18 March 2010, pm, pp. 58-59.
[615] John Madden, 22 March 2010, pm, pp. 32-36.
[616] John Madden, 22 March 2010, pm, pp. 38-39.
[617] John Madden, 22 March 2010, pm, pp. 36-38.
[618] John Madden, 22 March 2010, pm, pp. 39-40.
[619] John Madden, 29 March 2010, am, p. 26.
[620] John Madden, 22 March 2010, pm, pp. 40-41, 44-45.
[621] John Madden, 31 March 2010, am, pp. 32-33.
[622] John Madden, 22 March 2010, pm, pp. 41-42.
[623] John Madden, 22 March 2010, pm, pp. 45-54.
[624] John Madden, 22 March 2010, pm, pp. 53-55.
[625] Stuart Jagger, 19 March 2010, am, p. 3; John Madden, 29 March 2010, am, pp. 9-26.
[626] Stuart Mortimore, 16 March 2010, am, p. 84.
[627] John Madden, 29 March 2010, am, pp. 11-12, 24-26.
[628] John Madden, 29 March 2010, am, pp. 10-11, 19-21.
[629] John Madden, 29 March 2010, am, pp. 8-9.
[630] John Madden, 29 March 2010, am, pp. 8-9; 30 March 2010, am, p. 56-57.
[631] John Madden, 30 March 2010, am, p. 32.
[632] Stuart Mortimore, 11 March 2010, am, p. 107.
[633] Stephen Joel, 10 March 2010, am, pp. 41-42, 51-55; Stuart Mortimore, 11 March 2010, am, pp. 107-108.
[634] Stuart Mortimore, 15 March 2010, am, pp. 73-76.
[635] Stuart Mortimore, 16 March 2010, am, p. 32; John Madden 29 March 2010, am, pp. 14, 22.
[636] Stuart Mortimore, 11 March 2010, am, pp. 107-108; John Madden, 29 March 2010, am, pp. 14-15..
[637] John Madden, 22 March 2010, pm, pp. 39-40.
[638] John Madden, 29 March 2010, am, pp. 40-42.
[639] John Madden, 29 March 2010, am, pp. 40-42.
[640] John Madden, 29 March 2010, am, p. 43.
[641] John Madden, 22 March 2010, pm, pp. 54-55.
[642] John Madden, 29 March 2010, am, pp. 26-27.
[643] John Madden, 29 March 2010, am, pp. 33-34, 38.
[644] John Madden, 29 March 2010, am, pp. 28-29.
[645] John Madden, 29 March 2010, am, p. 29.
[646] John Madden, 29 March 2010, am, pp. 27-32.
[647] Chapter 3, para. 7.
[648] For Cupboard A2, see Chapter 3, para. 17, above, and Chapter 13 below.
[649] Stuart Mortimore, 10 March 2010, pm, pp. 99-100, 11 March 2010, am, pp. 5-8, 24; John Madden, 29 March 2010, am, pp. 89-97, 30 March 2010, am, p. 120.
[650] Stuart Mortimore, 11 March 2010, am, pp. 91-92.
[651] With the exception of an arrangement shown in close up in Pro 1024F, designed to hold the earth wire close to the upper busbar for the purpose of certain tests undertaken on this distribution board: see Stuart Mortimore, 11 March 2010, am, pp. 111-112; John Madden, 29 March 2010, am, pp. 55-57.
[652] Stephen Joel, 10 March 2010, am, pp. 27-28.
[653] Stephen Joel, 10 March 2010, am, p. 65.
[654] Stephen Joel, 10 March 2010, am, pp. 31-32; John Madden, 30 March 2010, am, pp. 122-123
[655] John Madden, 30 March 2010, am, pp. 122-123.
[656] Stuart Mortimore, 11 March 2010, pm, p. 30, p. 71, 16 March 2010, pm, pp. 46-47, 17 March 2010, am, pp. 110-111; John Madden, 30 March 2010, am, p. 128.
[657] Stuart Mortimore, 16 March 2010, pm, p. 38, 17 March 2010, am, pp. 112-113.
[658] John Madden, 30 March 2010, am, pp. 120-121; the Figure is on manuscript page 48.
[659] Stuart Mortimore, 16 March 2010, am, pp. 16-17; under reference to Pro 873A.
[660] John Madden, 29 March 2010, am, pp. 467-47; 30 March 2010, am, pp. 133-136.
[661] Stephen Joel, 10 March 2010, am, pp. 30-31, under reference to Label 464 (the upper busbar); Stuart Mortimore, 11 March 2010, am, pp. 75-76.
[662] John Madden, 29 March 2010, am, pp. 53-54.
[663] John Madden, 29 March 2010, am, pp. 47-49.
[664] John Madden, 30 March 2010, am, pp. 137-138.
[665] Alexander Ross, 27 January 2010, pm, p. 46
[666] John Madden, 29 March 2010, am, pp. 49-52.
[667] John Madden, 29 March 2010, am, pp. 52-53; 30 March 2010, am, p. 132.
[668] Stuart Mortimore, 11 March 2010, am, pp. 74-79; John Madden, 30 March 2010, am, pp. 147-148.
[669] John Madden, 30 March 2010, am, p. 50.
[670] Stuart Mortimore, 11 March 2010, pm, p. 75.
[671] John Madden, 30 March 2010, pm, pp. 9-10.
[672] Stuart Mortimore, 11 March 2010, am, pp. 100-101.
[673] Stuart Mortimore, 11 March 2010, am, pp. 92-97.
[674] John Madden, 30 March 2010, am, p. 138.
[675] John Madden, 30 March 2010, am, pp. 139-140; 31 March 2010, am, pp. 49-50.
[676] Stuart Mortimore, 11 March 2010, am, pp. 76, 87-91, pm, pp. 5-6.
[677] Paul Markham, 18 March 2010, pm, pp. 48-50; John Madden, 29 March 2010, am, pp. 86-89.
[678] Paul Markham, 18 March 2010, pm, p. 50.
[679] Paul Markham, 18 March 2010, pm, pp. 50-51.
[680] John Madden, 30 March 2010, am, p. 141; 31 March 2010, pm, pp. 23-24.
[681] Stuart Mortimore, 15 March 2010, am, pp. 21-24; see also 2 August 2010, pm, pp. 14-16.
[682] John Madden, 30 March 2010, am, p. 132.
[683] Stuart Mortimore, 11 March 2010, pm, pp. 77-79, 15 March 2010, am, pp. 52-53. Such a cover is shown on the lower busbar in Pro 1024A: Stuart Mortimore, 11 March 2010, pm, p. 78.
[684] Stephen Joel, 10 March 2010, am, pp. 28-29; John Madden, 30 March 2010, am, pp. 123-124.
[685] John Madden, 30 March 2010, am, p. 124.
[686] Stuart Mortimore, 11 March 2010, pm, pp. 16, 18-19.
[687] Stuart Mortimore, 18 March 2010, pm, pp. 20-23.
[688] Stephen Joel, 10 March 2010, am, pp. 32-33.
[689] Thomas Balmer, 4 May 2010, am, pp. 19-20.
[690] John Madden, 30 March 2010, am, p. 35.
[691] Stuart Mortimore, 11 March 2010, am, pp. 79-83, pm, pp. 73-74, 15 March 2010, am, pp. 43-44; John Madden, 30 March 2010, pm, pp. 4-8.
[692] Stuart Mortimore, 11 March 2010, am, pp. 36-37; John Madden, 29 March 2010, am, pp. 72-73; 30 March 2010, am, pp. 141-142.
[693] Stuart Mortimore, 11 March 2010, am, pp. 37-38; John Madden, 30 March 2010, am, pp. 138-139.
[694] Stuart Mortimore, 11 March 2010, pm, p. 71.
[695] See Chapter 10, paras. 1-2.
[696] Stuart Mortimore, 11 March 2010, am, pp. 87-91, pm, pp. 5-6.
[697] John Madden, 29 March 2010, am, pp. 100, 115; 30 March 2010, am, pp. 145-146.
[698] John Madden, 29 March 2010, am, pp. 100-101, 30 March 2010, am, pp. 145-146.
[699] Colin Reed, 11 June 2010, am, p. 8, under reference to Label 479.
[700] John Madden, 29 March 2010, am, p. 115; 30 March 2010, am, pp. 1420143.
[701] Stuart Mortimore, 11 March 2010, pm, p. 9, p 82; Colin Reed, 11 June 2010, am, pp. 8-10.
[702] John Madden, 29 March 2010, pm, p. 62.
[703] Stuart Mortimore, 11 March 2010, pm, pp. 33-34.
[704] Stuart Mortimore, 16 March 2010, pm, pp. 45-46; John Madden, 30 March 2010, am, pp. 128-130.
[705] This is the ventilation shaft on which, within the laundry, the switches for the power to the washing machines were mounted: Chapter 10, para. 2.
[706] Stuart Mortimore, 11 March 2010, pm, p. 45-46.
[707] Stuart Mortimore, 11 March 2010, pm, pp. 33-34.
[708] Stuart Mortimore, 11 March 2010, pm, pp. 28-29.
[709] Stuart Mortimore, 11 March 2010, pm, p. 33.
[710] Stuart Mortimore, 11 March 2010, pm, pp. 27-30; John Madden, 29 March 2010, am, pp. 102-106.
[711] Alexander Ross, 27 January 2010, pm, pp. 17-18, 41-44; John Madden, 30 March 2010, pm, pp. 11, 16-17, 29-30.
[712] John Madden, 30 March 2010, pm, p. 13
[713] John Madden, 30 March 2010, pm, p. 12.
[714] Thomas Balmer, 4 May 2010, am, pp. 25-26.
[715] John Madden, 30 March 2010, pm, pp. 11-12, 14-15.
[716] Alexander Ross, 27 January 2010, pm, pp. 12-17; John Madden, 30 March 2010, pm, pp. 13-14; cp George Harvie, 29 January 2010, am, p. 131.
[717] George Harvie, 29 January 2010, am, pp. 127-132
[718] Alexander Ross, 27 January 2010, pm, pp. 41-43; John Madden, 30 March 2010, pm, pp. 12-13, 15-16.
[719] George Harvie, 29 January 2010, am, pp. 133-143, 152; 2 February 2010, am, pp. 12-13.
[720] Thomas Balmer, 4 May 2010, am, pp. 8-15.
[721] Alexander Ross, 27 January 2010, pm, p. 12
[722] Alexander Ross, 27 January 2010, pm, pp. 44, 57.
[723] Thomas Balmer, 4 May 2010, am, pp. 15-17. For the installation of the 903, see Chapter 10, para. 3.
[724] Alexander Ross, 27 January 2010, pm, pp. 19-21.
[725] Duncan McRae, 26 January 2010, am, pp. 90-97, pm, pp. 12-15.
[726] Chapter 10, para. 3.
[727] Chapter 10, para. 4.
[728] Joseph Clark, 20 January 2010, am, p. 94, pm, pp. 23, 31.
[729] George Muir, 18 January 2010, pm, pp. 88-91.
[730] Alexander Ross, 27 January 2010, pm, p. 32
[731] Joseph Clark, 20 January 2010, am, p. 144, p. 47.
[732] See para. 22 above.
[733] See para. 22 above.
[734] See para. 57 below.
[735] Joseph Clark, 20 January 2010, pm, pp. 29-33, 49-50.
[736] Alexander Ross, 27 January 2010, pm, pp. 59-62.
[737] Thomas Balmer, 4 May 2010, am, pp. 22-25.
[738] Stuart Mortimore, 11 March 2010, am, p. 25; John Madden, 29 March 2010, am, pp. 96-97.
[739] Stephen Joel, 10 March 2010, am, pp. 65-69.
[740] Stuart Mortimore, 11 March 2010, am, p. 99, pm p. 76.
[741] Stuart Mortimore, 11 March 2010, am, pp. 100-102.
[742] Stuart Mortimore, 11 March 2010, am, pp. 100-102.
[743] Para. 22 above.
[744] Stuart Mortimore, 11 March 2010, am, pp. 86-89
[745] Stuart Mortimore
[746] Stuart Mortimore, 11 March 2010, am, pp. 102-106
[747] Stuart Mortimore, 11 March 2010, pm, pp. 6-12, 14-15; John Madden, 29 March 2010, am, pp. 83-85
[748] John Madden, 30 March 2010, am, p. 48.
[749] Stuart Mortimore, 11 March 2010, pm, p. 80.
[750] Stuart Mortimore, 11 March 2010, pm, p. 81.
[751] Stuart Mortimore, 11 March 2010, pm, pp. 6-12, 14-15.
[752] Stuart Mortimore, 11 March 2010, pm, pp. 6-12, 14-15; John Madden, 29 March 2010, am, pp. 83-85.
[753] John Madden, 30 March 2010, am, p. 47.
[754] Stuart Mortimore, 11 March 2010, pm, pp. 11-12.
[755] Stuart Mortimore, 11 March 2010, pm, pp. 83-84.
[756] Stephen Joel, 10 March 2010, am, pp. 47-48.
[757] Stuart Mortimore, 11 March 2010, pm, pp. 13-14.
[758] Stuart Mortimore, 16 March 2010, pm, p. 7; John Madden, 30 March 2010, am, p. 61.
[759] Stuart Mortimore, 11 March 2010, pm, pp. 16-17, 84-5, 16 March 2010, am, pp. 47-48.
[760] Ivan Vince, 11 August 2010, am, pp. 62-63.
[761] Ivan Vince, 11 August 2010, am, pp. 65-66.
[762] James Lygate, 10 August 2010, am, pp. 80-82. Dr. Vince deferred to an experienced fire investigator on this question: 11 August 2010, am, p. 66.
[763] Stuart Mortimore, 11 March 2010, pm, pp. 16-17.
[764] John Madden, 30 March 2010, am, pp. 61-62; Ivan Vince, 11 August 2010, am, pp. 66-68.
[765] Stuart Mortimore, 16 March 2010, pm, pp. 7-8.
[766] 11 March 2010, pm pp. 20-21.
[767] 2 August 2010, pm, p. 114.
[768] 2 August 2010, pm, pp. 113-114.
[769] 16 March 2010, pm, pp. 8-9; 2 August 2010, pm, p. 77.
[770] Stephen Joel; pro 1284, p. 9 (manuscript); Stuart Mortimore, 2 August 2010 pm, pp. 73-74.
[771] 2 August 2010, pm, p. 115.
[772] Para. 34 above.
[773] John Madden, 30 March 2010, pm, pp. 22-23.
[774] Alexander Ross, 28 January 2010, am, pp. 46-49; John Madden, 30 March 2010, pm, pp. 17-26.
[775] Alexander Ross, 28 January 2010, am, pp. 46-47
[776] Stuart Mortimore, 11 March 2010, pm, pp. 35ff.
[777] Alexander Ross, 28 January 2010, am, p. 54; David Millar 1 April 2010, pm, pp. 32-33.
[778] John Madden, 30 March 2010, pm, pp. 60-61.
[779] Stuart Mortimore, 11 March 2010, pm, pp. 32-33, 16 March 2010, pm, p. 69.
[780] Stuart Mortimore, 11 March 2010, pm, p. 32.
[781] John Madden, 31 March 2010, am, p. 67.
[782] Stuart Mortimore, 11 March 2010, pm, p. 33
[783] David Millar, 1 April 2010, pm, pp. 31-32.
[784] John Madden, 31 March 2010, am, p. 67; David Millar, 1 April 2010, pm, pp. 32-34.
[785] John Madden, 30 March 2010, pm, pp. 40-41; cp Alexander Ross, 27 January 2010, pm, pp. 20-25.
[786] John Madden, 30 March 2010, pm, pp. 39-45.
[787] Stuart Mortimore, 16 March 2010, pm, pp. 65-67; John Madden, 30 March 2010, pm, pp. 44-51.
[788] Chapter 10, para. 5.
[789] Stuart Mortimore, 16 March 2010, pm, pp. 63-64; John Madden, 30 March 2010, pm, pp. 30-40.
[790] John Madden, 30 March 2010, pm, p. 40.
[791] John Madden, 30 March 2010, pm, pp. 30-40.
[792] Stuart Mortimore, 16 March 2010, pm, pp. 64-65; John Madden, 30 March 2010, pm, pp. 55-56.
[793] John Madden, 30 March 2010, pm, pp. 56-57.
[794] Stuart Mortimore, 16 March 2010, pm, p. 67; John Madden, 30 March 2010, am, p. 141; David Millar, 1 April 2010, pm pp. 34-35.
[795] John Madden, 30 March 2010, pm, pp. 57-58.
[796] Alexander Ross, 28 January 2010, am, p. 53; Stuart Mortimore, 16 March 2010, pm, pp. 68-69; John Madden, 29 March 2010, am, pp. 113-114, 30 March 2010, pm, pp. 58-59; David Millar, 1 April 2010, am, pp. 29-30.
[797] John Madden, 31 March 2010, pm, pp. 38-39.
[798] John Madden, 9 August 2010, am, pp. 117-118.
[799] John Madden, 31 March 2010, pm, pp. 39-40.
[800] John Madden, 31 March 2010, pm, pp. 39-40.
[801] 15th edition, Pro 1948, Chapter 63 (p. 106 at bottom right); John Madden, 31 March 2010, am, pp. 93-94.
[802] John Madden 31 March 2010, am, p. 94.
[803] Alexander Ross, 28 January 2010, am, pp. 62-63John Madden, 31 March 2010, am, p. 95, pm, pp. 17-21; David Millar, 1 April 2010, pm, pp. 23-24; Robert Cairney, 2 August 2010, am, pp. 5-6, 14-16.
[804] Pro 1948, Appendix 16, Note (p. 220 at bottom right); John Madden, 31 March 2010, am, pp. 96-100.
[805] Pp. 22-23.
[806] Pro 1417; John Madden, 31 March 2010, pm, pp. 1-5.
[807] Pro 1418, Pro 1419; John Madden, 31 March 2010, pm, pp. 6-8, 12-16.
[808] Pro 1419, para. 2.1.4 (p. 32); John Madden, 31 March 2010, pm, pp. 13-14.
[809] John Madden, 31 March 2010, pm, p. 14.
[810] Table 2.1.5 (p. 34); John Madden, 31 March 2010, pm,
[811] John Madden, 31 March 2010, pm, pp. 43-44.
[812] Robert Cairney, 2 August 2010, am, pp. 20-21.
[813] Robert Cairney, 2 August 2010, am, pp. 15-16.
[814] Robert Cairney, 2 August 2010, am, p. 16.
[815] John Madden, 9 August 2010, am, pp. 109-110, 118-119.
[816] Pro 1420, para. 3.1; Robert Cairney, 2 August 2010, am, pp. 16-17.
[817] Pro 2122, p. 64; John Madden, 9 August 2010, am, pp. 101, 111-119.
[818] Robert Cairney, 2 August 2010, am, pp. 16-20; John Madden, 9 August 2010, am, pp. 104-106.
[819] John Madden, 9 August 2010, am, pp. 104-111.
[820] Alexander Ross, 26 January 2010, pm, pp. 31-35, 27 January 2010, pm, pp. 3-4.
[821] Alexander Ross, 28 January 2010, am, pp. 35-36.
[822] Alexander Ross, 27 January 2010, am, pp. 101-102; Thomas Balmer, 30 April 2010, am, pp. 105-108.
[823] Alexander Ross, 27 January 2010, am, p. 108; 28 January 2010, am, pp. 32-33.
[824] Thomas Balmer, 30 April 2010, am, pp. 108-110.
[825] Thomas Balmer, 30 April 2010, am, pp. 108-112
[826] Thomas Blamer, 30 April 2010, am, pp. 112-113.
[827] Alexander Ross, 28 January 2010, pm, pp. 87-88; Thomas Balmer, 30 April 2010, pm, p. 33
[828] Alexander Ross, 28 January 2010, pm, p. 88; Thomas Balmer, 30 April 2010, pm, p. 33
[829] Alexander Ross, 27 January 2010, am, pp. 106-107.
[830] Alexander Ross, 27 January 2010, am, pp. 107-108.
[831] Thomas Balmer, 4 May 2010, am, p. 17; see also Alexander Ross, 27 January 2010, pm, pp. 2-3, pm, pp. 27-28.
[832] George Muir, 18 January 2010, pm, pp. 88-91.
[833] Pro 571, p. 3; Alexander Ross, 27 January 2010, am, pp. 121-126; Thomas Balmer, 30 April 2010, am, pp. 130-133.
[834] Pro 567; Joseph Clark, 20 January 2010, pm, pp. 50-53, 21 January 2010, am, pp. 6-29; Thomas Balmer, 30 April 2010, am, pp. 130-137.
[835] Joseph Clark, 20 January 2010, pm, pp. 53-54.
[836] Alexander Ross, 27 January 2010, am, pp. 104-106.
[837] Alexander Ross, 27 January 2010, am, pp. 108-109.
[838] Alexander Ross, 27 January 2010, am, pp. 109-112.
[839] Alexander Ross, 27 January 2010, am, p. 116.
[840] Alexander Ross, 28 January 2010, am, p. 58.
[841] Alexander Ross, 27 January 2010, am, pp. 120-121.
[842] Alexander Ross, 27 January 2010, am, p. 144
[843] Thomas Balmer, 7 May 2010, am, pp. 113-114.
[844] Alexander Ross, 28 January 2010, am, pp. 17-18.
[845] Alexander Ross, 28 January 2010, am, p. 18.
[846] Alexander Ross, 27 January 2010, am, pp. 136-137.
[847] Alexander Ross, 27 January 2010, am, pp. 111-113, 138-139.
[848] Alexander Ross, 27 January 2010, am, p. 121.
[849] Thomas Balmer, 30 April 2010, pm, pp. 67-74.
[850] Thomas Balmer, 30 April 2010, pm, pp. 6-8.
[851] Thomas Balmer, 30 April 2010, am, pp. 127-129, pm, pp. 3-8; 7 May 2010, am, pp. 119-121; 10 May 2010, am, pp. 131-132.
[852] John Madden, 9 August 2010, am, pp. 101, 111-119.
[853] John Madden, 9 August 2010, am, 104-111.
[854] Thomas Balmer, 7 May 2010, am pp. 122-123.
[855] Thomas Balmer, 30 April 2010, pm, pp. 6-8, 67-74.
[856] Robert Cairney, 2 August 2010, am, pp. 15-16; John Madden, 9 August 2010, am, pp. 104-111, 118-119.
[857] Pro 215, p. 60; Thomas Balmer, 30 April 2010, am, pp. 122-123; Carol Ann Brown, 12 August 2010, am,p. 8.
[858] Pro 215, p. 6; Thomas Balmer, 30 April 2010, am, p. 122; Carol Ann Brown, 12 August 2010, am, p. 8.
[859] Carol Ann Brown, 12 August 2010, am, p. 9.
[860] Carol Ann Brown, 12 August 2010, am, pp. 7-8.
[861] Alexander Ross, 27 January 2010, am, p. 118 (Pro 215, p. 6); Thomas Balmer, 30 April 2010, am, p. 127, pm, p. 49.
[862] Jonathan Morris, 11 June 2010, am, pp. 105-106
[863] Alexander Ross, 27 January 2010, am, pp. 119-120.
[864] Jonathan Morris, 11 June 2010, am, pp. 109-112;
[865] Thomas Balmer, 30 April 2010, pm, p. 51, 64; 7 May 2010, am. Pp. 105-107.
[866] Alexander Ross, 27 January 2010, am, pp. 129, 144, 28 January 2010, am, pp. 1-13.
[867] Alexander Ross, 27 January 2010, am, p. 130, pm, p. 8.
[868] Alexander Ross, 27 January 2010, am, pp. 102-103.
[869] Thomas Balmer, 30 April 2010, am, p. 124
[870] Alexander Ross, 27 January 2010, am, pp. 102-103.
[871] Alexander Ross, 27 January 2010, am, pp. 119-120.
[872] Alexander Ross, 27 January 2010, am, p. 126; Thomas Balmer, 7 May 2010, am, p. 103.
[873] Alexander Ross, 28 January 2010, pm, pp. 44-45.
[874] Alexander Ross, 27 January 2010, am, pp. 103-104, 120.
[875] Thomas Balmer, 30 April 2010, am, p. 125.
[876] Thomas Balmer, 30 April 2010, am, p. 126.
[877] Thomas Balmer, 30 April 2010, am, p. 126.
[878] Alexander Ross, 27 January 2010, am, p. 146.
[879] Alexander Ross, 28 January 2010, am, pp. 41-42
[880] Alexander Ross, 28 January 2010, pm, p. 47.
[881] Thomas Balmer, 7 May 2010, am, pp. 103-104.
[882] Thomas Balmer, 30 April 2010, pm, pp. 49-50; 7 May 2010, am, pp. 105-106.
[883] Thomas Balmer, 30 April 2010, pm, pp. 64-65.
[884] Alexander Ross, 27 January 2010, am, pp. 130, 141.
[885] Alexander Ross, 27 January 2010, am, pp. 141-142.
[886] Thomas Balmer, 30 April 2010, pm, p. 54.
[887] Alexander Ross, 27 January 2010, am, p. 135.
[888] Thoams Balmer, 7 May 2010, am, p. 110.
[889] Thomas Balmer, 30 April 2010, pm, p. 55.
[890] Thomas Balmer, 30 April 2010, pm, pp. 55-56.
[891] Thomas Balmer, 7 May 2010, am, p. 107.
[892] Thomas Balmer, 30 April 2010, pm, pp. 56-59.
[893] Thomas Balmer, 7 May 2010, am, p. 106.
[894] John Madden, 31 March 2010, pm, pp. 58-59.
[895] Alexander Ross, 27 January 2010, am, p. 146
[896] Alexander Ross, 27 January 2010, am, pp. 147-148.
[897] Thomas Balmer, 30 April 2010, pm, pp. 60-62.
[898] Thomas Balmer, 30 April 2010, pm, pp. 62-63; 7 May 2010, am, pp. 110-111. .
[899] Alexander Ross, 28 January 2010, pm, pp. 45-46; Thomas Balmer, 30 April 2010, pm, p. 66.
[900] Thomas Balmer, 30 April 2010, pm, p. 66.
[901] Thomas Balmer, 7 May 2010, am, p. 107.
[902] Thomas Balmer, 30 April 2010, pm, p. 66.
[903] Alexander Ross, 27 January 2010, am, p. 145
[904] Thomas Balmer, 7 May 2010, am, p. 107; 10 May 2010, am, pp. 51-55, 58-61.
[905] See Chapter 3, para. 17.
[906] Allison Cumming, 18 November 2009, pm, pp. 92, 94; Yvonne Carlyle, 27 November 2009, am p. 19.
[907] Allison Cumming, 18 November 2009, pm, pp. 96-97; Yvonne Carlyle, 27 November 2009, am, p. 19.
[908] Allison Cumming, 18 November 2009, pm, p. 95; Yvonne Carlyle, 27 November 2009, am, p. 18; Sadie Meaney, 22 February 2010, am, p. 68; Thomas Balmer, 4 May 2010, pm, p. 67.
[909] Phyllis West, 23 November 2009, pm, pp. 40-44; Sadie Meaney, 22 February 2010, am, pp. 74-75; Thomas Balmer, 4 May 2010, pm, p. 67.
[910] Chapter 11, paras. 15 ff.
[911] Stuart Mortimore, 16 March 2010, am, p. 95.
[912] Stuart Mortimore, 2 August 2010, pm, p. 23.
[913] Stuart Mortimore, 2 August 2010, pm, pp. 21-22.
[914] Sadie Meaney, 18 February 2010, am, pp. 134-135; Thomas Balmer, 4 May 2010, pm, pp. 66-67.
[915] Allison Cumming, 18 November 2009, pm, pp. 95-96; Yvonne Carlyle, 27 November 2009, am, p. 18; Sadie Meaney, 18 February 2010, am, p. 135.
[916] Phyllis West, 23 November 2009, pm, pp. 41; Yvonne Carlyle, 27 November 2009, am, p. 18.
[917] Yvonne Carlyle, 27 November 2009, am, p. 18.
[918] Sadie Meaney, 22 February 2010, am, pp. 68-69.
[919] David Robertson, 9 February 2010, pm, p60.
[920] David Robertson, 9 February 2010, pm, pp78-80; Pro. 1797, p74;
[921] Margaret McCondichie, 8 February 2010, am, pp104-105
[922] David Robertson, 9 February 2010, pm, pp80-82.
[923] David Robertson, 9 February 2010, pm, pp82-83; Pro.1797, p75;
[924] David Robertson, 9 February 2010, pm, pp83-84; Pro. 1797, p75;
[925] Karen Walker, 9 August 2010, am, pp. 93-96.
[926] Stuart Mortimore, 2 August 2010, pm, pp. 25-26, 31-32.
[927] Stuart Mortimore, 2 August 2010, pm, pp. 26-27
[928] David Robertson, 9 February 2010, pm, p86; Pro. 1797, p75;
[929] Margaret McCondichie, 8 February 2010, am, pp106-107;
[930] David Robertson, 9 February 2010, pm, p89; Pro. 1797, p75;
[931] David Robertson, 9 February 2010, pm, pp89-90; Pro. 1797, p76;
[932] Margaret McCondichie, 8 February 2010, am, pp108-109;
[933] David Robertson, 9 February 2010, pm, p90; Pro. 1797,
[934] David Robertson, 9 February 2010, pm, p91; Pro. 1797, p77;
[935] David Robertson, 9 February 2010, pm, pp91-92; Pro. 1797, p77;
[936] David Robertson, 9 February 2010, pm, p92; Pro, 1797, p77;
[937] David Robertson, 9 February 2010, pm, p92; Pro. 1797, p77;
[938] For evidence about aerosol cans generally, and the role that they played in the development of the fire, see Chapter 34 (formerly 29).
[939] Christopher Martin, 30 July 2010, am, pp. 55-56; Karen Walker, 9 August 2010, am, p. 69, Pro 836B.
[940] Karen Walker, 9 August 2010, am, p. 69.
[941] Karen Walker, 9 August 2010, am, pp. 68-70.
[942] Karen Walker, 9 August 2010, am, pp. 69-70.
[943] Karen Walker, 9 August 2010, am, pp. 75-76.
[944] Karen Walker,9 August 2010, am, p. 71; Pros 843A and B.
[945] Christopher Martin, 30 July 2010, am, pp. 58-59.
[946] Karen Walker, 9 August 2010, am, pp. 72-74, under reference to Pro 333E.
[947] Karen Walker, 9 August 2010, am, p. 71.
[948] Karen Walker, 9 August 2010, am, pp. 72-74.
[949] Karen Walker, 9 August 2010, am, pp. 75-76.
[950] Karen Walker, 9 August 2010, am, pp. 74-75.
[951] Karen Walker, 9 August 2010, am, pp. 75-76.
[952] Karen Walker, 9 August 2010, am, pp. 76-77 under reference to Label 482.
[953] Karen Walker, 9 August 2010, am, pp. 78-80.
[954] Karen Walker, 9 August 2010, am, pp. 81-82
[955] Karen Walker, 9 August 2010, am, pp ; Christopher Martin, 30 July 2010, am, pp. 89-90.
[956] Karen Walker, 9 August 2010, am, pp. 82-87.
[957] Karen Walker, 9 August 2010, am, pp. 87-93; Christopher Martin, 30 July 2010, am, pp. 82-89.
[958] Karen Walker, 9 August 2010, am; Christopher Martin, 30 July 2010, am, pp. 91-94,
[959] Christopher Martin, 30 July 2010, am, pp. 65-67.
[960] Christopher Martin, 30 July 2010, am, p. 69.
[961] See generally, Chapter 3, para. 10.
[962] Iain Fothringham, 15 January 2010, am, p. 126.
[963] Pro 1094, p. 11; Iain Fothringham, 18 January 2010, am, pp. 150, 155.
[964] Iain Fothringham, 18 January 2010, pm, pp. 15-20.
[965] Thomas Balmer, 29 April 2010, am, pp. 72-73.
[966] Pros 332A, 887R, 1062A; Iain Fothringham, 15 January 2010, am, pp. 122-124; 18 January 2010, am, pp. 44-45.
[967] Pro 215, p. 69; Iain Fothringham, 15 January 2010, am, pp. 117-118. Although Mr. Balmer did not recall this change, he accepted that this was what the Comtec documentation showed: 29 April 2010, am, pp. 52-64.
[968] Pro 215, p. 63; Iain Fothringham, 15 January 2010, am, pp. 118-119.
[969] Iain Fothringham, 15 January 2010, am, pp. 112-113.
[970] Christopher Miles, 2 August 2010, am, pp. 41-42.
[971] Christopher Miles, 2 August 2010, am, pp. 45-47.
[972] Christopher Miles, 2 August 2010, am, p. 47.
[973] Christopher Miles, 2 August 2010, am, pp. 51-52.
[974] Christopher Miles, 2 August 2010, am, pp. 53-54.
[975] Christopher Miles, 2 August 2010, am, pp. 54-57.
[976] Christopher Miles, 2 August 2010, am, p. 57.
[977] Christopher Miles, 2 August 2010, am, pp. 47-51.
[978] Chrisophter Miles, 2 August 2010, am, pp. 58, 78.
[979] Christopher Miles, 2 August 2010, am, pp. 93-7.
[980] Allison Cumming, 19 November 2009, pm, pp. 18-20; Phyllis West, 23 November 2009, am, p. 72.
[981] Thomas Balmer, 29 April 2010, am, pp. 66-67.
[982] Thomas Balmer, 29 April 2010, am, pp. 68-69.
[983] Martin Shipp, 15 April 2010, am, pp. 125-126; Christopher Miles, 2 August 2010, am, pp. 45-46; cp Colin Todd, 27 July 2010, am, pp. 55-58.
[984] 887R; Thomas Balmer, 29 April 2010, am, p. 69.
[985] Sadie Meaney, 18 February 2010, am, pp. 123-125, pm, p. 4.
[986] Sadie Meaney, 19 February 2010, am, pp. 79-80.
[987] Sadie Meaney, 18 February 2010, am, p. 125.
[988] Allison Cumming, 19 November 2009, pm, p. 18; Alexis Coster, 24 November 2009, am, pp. 84-85; Eleanor Ward, 24 November 2009, pm, p. 19; Rosemary Buckley, 25 November 2009, pm, p. 64; Yvonne Carlyle, 27 November 2009, am, p. 21; Irene Richmond, 27 November 2009, pm, p. 98.
[989] Flora Davidson, 12 February 2010, am, pp. 45-46, 55-56.
[990] Thomas Balmer, 29 April 2010, am, p. 66.
[991] Thomas Balmer, 29 April 2010, am, p. 70.
[992] Allison Cumming, 19 November 2009, pm, p. 23.
[993] Thomas Sorbie, 8 June 2010, am, p. 60.
[994] Thomas Balmer, 29 April 2010, am, pp. 90-91.
[995] Joseph Clark, 20 January 2010, am, pp. 85-90.
[996] Thomas Balmer, 4 May 2010, am, p. 27-28.
[997] Sadie Meaney, 19 February 2010, am, pp. 1-4.
[998] Thomas Balmer 7 May 2010, pm, p. 16.
[999] Thomas Balmer, 29 April 2010, am, pp. 97, 102.
[1000] Anne Balmer, 15 July 2010, am, pp. 106-107, 116.
[1001] Brigid Boyle, 16 February 2010, am, pp. 23-28; Thomas Balmer, 29 April 2010, am, pp. 96-104; Anne Balmer, 15 July 2010, am, p. 107, 109.
[1002] Anne Balmer, 15 July 2010, am, p. 120
[1003] Thoams Balmer, 7 May 2010, pm, pp. 16-17.
[1004] Pro 218, p. 93; Thomas Balmer, 29 April 2010, am, pp. 98-100.
[1005] Anne Balmer, 15 July 2010, am, p. 117, 120.
[1006] Thomas Balmer, 29 April 2010, am, pp. 117-119; Anne Balmer, 15 July 2010, am, pp. 120-121.
[1007] Thomas Balmer, 10 May 2010, pm, p. 36.
[1008] Anne Balmer, 15 July 2010, am, p. 128.
[1009] Thomas Balmer, 29 April 2010, am, pp. 120, 122-123; see also pp. 110-111.
[1010] Thomas Balmer, 29 April 2010, am, p. 129, pm, p. 1.
[1011] Thomas Balmer, 29 April 2010, am, p. 130, pm, pp. 1-2.
[1012] Thomas Balmer, 29 April 2010, pm, p. 2
[1013] Thomas Balmer, 29 April 2010, am, pp. 120-123.
[1014] Thomas Balmer, 29 April 2010, am, p. 94; Alan Balmer, 2 June 2010, pm, p. 13.
[1015] William Dickie, 13 January 2010, am, pp. 142-147; 13 January 2010, pm, pp. 1-3; Thomas Balmer, 29 April 2010, pm, p. 9.
[1016] Pro 1227, p. 47; William Dickie, 13 January 2010, pm, pp. 19-20.
[1017] Pro 1115, p. 39; Thomas McNeilly, 25 January 2010, am, pp. 93-98, 104; Thomas Balmer, 29 April 2010, pm, pp. 7-14.
[1018] Thomas Balmer, 29 April 2010, pm, pp. 16-18; 30 April 2010, am, pp. 66-67; 10 May 2010, pm, pp. 38-39; Alan Balmer, 2 June 2010, pm, pp. 13-34.
[1019] Alan Balmer, 2 June 2010, pm, pp. 29-32.
[1020] Thomas McNeilly, 25 January 2010, am, pp. 106ff; Colin Power, 11 June 2010, am, pp. 139-146.
[1021] Thomas McNeilly, 25 January 2010, am, pp. 109-110.
[1022] William Dickie, 13 January 2010, pm, pp. 12-13; Thomas Balmer, 29 April 2010, pm, pp. 18-20.
[1023] William Dickie, 13 January 2010, pm, pp. 21-24; Thomas Balmer, 29 April 2010, pm, pp. 21, 25; Alan Balmer, 2 June 2010, pm, pp. 41-42.
[1024] Pro 1115, p. 6; Thomas Balmer, 29 April 2010, pm, pp. 25.
[1025] Pro 1105, p. 4; Thomas Balmer, 29 April 2010, pm, p. 26.
[1026] Pro 1105, p.43; William Dickie, 13 January 2010, am, pp. 141-142.
[1027] Thomas Balmer, 29 April 2010, pm, pp. 20-21.
[1028] Thomas Balmer, 29 April 2010, pm, pp. 34-35.
[1029] Thomas Balmer, 29 April 2010, pm, pp. 34-35; Alan Balmer, 2 June 2010, pm, pp. 47-48 Anne Balmer, 15 July 2010, am, pp. 122-123.
[1030] Thomas Balmer, 10 May 2010, pm, pp. 40-41.
[1031] Alan Balmer, 2 June 2010, pm, pp. 49-55
[1032] Colin Power, 11 June 2010, pm, pp. 20-22.
[1033] Allison Cumming, 19 November 2009, pm, p. 26; Phyllis West, 23 November 2009, am, p. 63.
[1034] Thomas Balmer, 4 May 2010, pm, pp. 55-56
[1035] Anne Balmer, 15 July 2010, am, p. 104.
[1036] Anne Balmer, 15 July 2010, am, p. 114.
[1037] Thomas Balmer, 29 April 2010, am, pp. 124-125, 126.
[1038] Sadie Meaney, 18 February 2010, am, p. 131; Thomas Balmer, 29 April 2010, am, p. 126.
[1039] Anne Balmer, 15 July 2010, am, pp. 102-103.
[1040] Thomas Balmer, 29 April 2010, pm, pp. 3-4; 5 May 2010, am, p. 77; Alan Balmer, 3 June 2010, am, pp. 37-39; Anne Balmer, 15 July 2010, am, pp. 103-104; see also Brigid Boyle, 16 February 2010, am, p. 22.
[1041] Anne Balmer, 15 July 2010, am, p. 104.
[1042] Thomas Balmer, 4 May 2010, pm, pp. 57-59; see also Brigid Boyle, 16 February 2010, am, p. 22; Anne Balmer, 15 July 2010, am, p. 104.
[1043] Thomas Balmer, 4 May 2010, pm, p. 57; 5 May 2010, am, p. 77.
[1044] Thomas Balmer, 5 May 2010, am, pp. 78-79.
[1045] Sadie Meaney, 18 February 2010, am, pp. 125-127, 19 February 2010, am, pp. 81-82.
[1046] Sadie Meaney, 18 February 2010, am, pp. 120-121.
[1047] Sadie Meaney, 18 February 2010, am, pp. 127-128, 22 February 2010, pm, pp. 82-84.
[1048] Sadie Meaney, 19 February 2010, pm, pp. 62-63, 22 February 2010, am, pp. 54-55.
[1049] Phyllis West, 23 November 2009, am, pp. 60.
[1050] Allison Cumming, 19 November 2009, pm, pp. 20-22, 25-26; Phyllis West, 23 November 2009, am, pp. 62-63; Alexis Coster, 24 November 2009, am, p. 84; Yvonne Carlyle, 27 November 2009, am, p. 20; Flora Davidson, 12 February 2010, am, pp. 46-47.
[1051] Allison Cumming, 19 November 2009, pm, p. 26; Phyllis West, 23 November 2009, am, pp. 62-66; Eleanor Ward, 24 November 2009, pm, pp. 16-17; Rosemary Buckley, 25 November 2009, pm, pp. 64-65.
[1052] Rosemary Buckley, 25 November 2009, pm, pp. 75-77; Brian Norton, 26 November 2009, am, pp. 51-52.
[1053] Irene Richmond, 1 December 2009, am, pp. 58-59.
[1054] Brian Norton, 26 November 2009, am, pp. 51-52.
[1055] Eleanor Ward, 24 November 2009, pm, p. 41; Irene Richmond, 1 December 2009, am, pp. 59-60.
[1056] Yvonne Carlyle, 27 November 2009, am, p. 21; Irene Richmond, 1 December 2009, am, p. 57.
[1057] Allison Cumming, 19 November 2009, pm, pp. 24-25.
[1058] Allison Cumming, 19 November 2009, pm, p. 23; Phyllis West, 23 November 2009, am, pp. 67-68.
[1059] Allison Cumming, 19 November 2009, pm, pp. 23-24.
[1060] Thomas Balmer, 29 April 2010, am, pp. 124-125.
[1061] Thomas Balmer, 29 April 2010, pm, pp. 2, 35.
[1062] Thomas Balmer, 29 April 2010, pm, pp. 2-3.
[1063] Thomas Balmer, 4 May 2010, am, pp. 60-61.
[1064] Carol Ann Brown, 12 August 2010, am, pp. 3-4.
[1065] Thomas Balmer, 4 May 2010, am, p. 44.
[1066] Thomas Balmer, 6 May 2010, pm, p. 20; see also Alan Balmer, 3 June 2010, am, pp. 27-31.
[1067] Anne Balmer, 15 July 2010, am, pp. 143-144
[1068] Thomas Balmer, 4 May 2010, am, pp. 61-62.
[1069] James Reid, 16 February 2010, am, pp. 68-75.
[1070] Pro 259, p. 33ff; Thomas Balmer, 4 May 2010, am, pp. 78ff.
[1071] Pro 259, p. 35; Thomas Balmer, 4 May 2010, am, p. 79
[1072] Thomas Balmer, 4 May 2010, am, p. 79
[1073] Sadie Meaney, 19 February 2010, pm, pp. 19-20; Thomas Balmer, 4 May 2010, am, pp. 79-82; 6 May 2010, pm, pp. 19-20.
[1074] Sadie Meaney, 18 February 2010, am, pp. 110-111, 19 February 2010, pm, pp. 19-20.
[1075] E.g. Pro 243, p. 19 (Isobel Queen's record); Sadie Meaney, 18 February 2010, pm, pp. 34-36.
[1076] Allison Cumming, 19 November 2009, am, p. 54.
[1077] See e.g. Allison Cumming, 19 November 2009, am, pp. 68 -73, under reference to Pro 32, pp. 10ff.
[1078] See e.g. Allison Cumming, 19 November 2009, am, pp. 79-82 under reference to Pro 32, pp. 30ff.
[1079] See e.g. Allison Cumming, 19 November 2009, am, pp. 84-88 under reference to Pro 32, pp 34ff
[1080] Allison Cumming, 19 November 2009, pm, pp. 27-28.
[1081]Sadie Meaney, 19 February 2010, pm, pp. 79-81.
[1082] Pro 881Q, 881R; Sadie Meaney, 19 February 2010, pm, p. 81.
[1083] Phyllis West, 23 November 2009, am, p. 76.
[1084] Phyllis West, 23 November 2009, am, p. 78.
[1085] Phyllis West, 23 November 2009, pm, pp. 51-52.
[1086] Pro 881I, 881L; Sadie Meaney, 19 February 2010, pm, pp. 68-71.
[1087] Sadie Meaney, 22 February 2010, am, p. 6.
[1088] Pro 334H
[1089] Sadie Meaney, 22 February 2010, am, p. 6.
[1090] Pro 334I
[1091] Pro 259, p. 19.
[1092] Sadie Meaney, 18 February 2010, am, pp. 102-103.
[1093] Thomas Balmer, 6 May 2010, am, p. 10; Alan Balmer, 2 June 2010, am, p. 9.
[1094] Thomas Balmer, 5 May 2010, pm, p. 2.
[1095] Alan Balmer, 3 June 2010, am, pp. 27-28.
[1096] Pro 259, p. 19.
[1097] Sadie Meaney, 18 February 2010, am, pp. 103-105.
[1098] Sadie Meaney, 23 February 2010, am, p. 68.
[1099] Sadie Meaney, 18 February 2010, am, p. 103, 19 February 2010, pm, p. 11.
[1100] Sadie Meaney, 18 February 2010, am, pp. 105-106.
[1101] Sadie Meaney, 23 February 2010, pm, pp. 29-31.
[1102] Sadie Meaney, 19 February 2010, pm, pp. 28-29.
[1103] Sadie Meaney, 19 February 2010, pm, pp. 27-32.
[1104] Sadie Meaney, 18 February 2010, pm, pp. 18, 26.
[1105] Thomas Balmer, 6 May 2010, am, pp. 10-20, 30-31.
[1106] Sadie Meaney, 18 February 2010, am, pp. 106-108, 19 February 2010, pm, p. 32.
[1107] Sadie Meaney, 19 February 2010, pm, pp. 24-26.
[1108] Thomas Balmer, 4 May 2010, am, p. 90.
[1109] Thomas Balmer, 6 May 2010, am, pp. 24-28.
[1110] Brigid Boyl3, 16 February 2010, am pp. 7-9.
[1111] Allison Cummings, 19 November 2009, am, pp. 47-48, under reference to Pro 399, p. 21; Isobel Queen, 2 December 2009, am, p. 23.
[1112] Sadie Meaney, 19 February 2010, pm, p. 59; cp Anne Jarvie, 21 July 2010, am, pp. 133-137.
[1113] Thomas Balmer, 6 May 2010, am, p. 99
[1114] Sadie Meaney, 19 February 2010, pm, pp. 59-60.
[1115] Anne Jarvie, 21 July 2010, am, pp. 136-138.
[1116] Sadie Meaney, 23 February 2010, pm, pp. 12-13.
[1117] Sadie Meaney, 18 February 2010, am, p. 114.
[1118] Joseph Clark, 21 January 2010, am, p. 71.
[1119] Pro 1115, p. 10; Alan Balmer, 3 June 2010, pm, pp. 89-93.
[1120] Thomas Balmer, 4 May 2010, pm, pp. 42-43.
[1121] Sadie Meaney, 18 February 2010, am, pp. 145-146, 19 February 2010, am, pp. 87-88; Thomas Balmer, 30 April 2010, pm, pp. 1-2; Anne Balmer, 15 July 2010, am, pp. 87-88.
[1122] Alan Balmer, 3 June 2010, pm, pp. 38-39.
[1123] Alan Balmer, 3 June 2010, pm, p. 30.
[1124] Alan Balmer, 3 June 2010, pm, p. 33.
[1125] Alan Balmer, 3 June 2010, pm, pp. 32-33, 70-71.
[1126] Thomas Balmer, 29 April 2010, pm, pp. 44-45; 30 April 2010, am, pp. 119-121, pm, p. 4.
[1127] Anne Balmer, 15 July 2010, am, p. 89.
[1128] Thomas Balmer, 29 April 2010, pm, pp. 44-45.
[1129] Thomas Balmer, 30 April 2010, am, p. 119.
[1130] Thomas Balmer, 30 April 2010, pm, p4.
[1131] Thomas Balmer, 30 April 2010, pm, pp. 4-5; see also 29 April 2010, pm, pp. 45-46.
[1132] Thomas Balmer, 7 May 2010, am, p. 74.
[1133] Thomas Balmer, 30 April 2010, am, pp. 39-58 under reference to Pro 259.
[1134] Thomas Balmer, 30 April 2010, am, p. 63.
[1135] Alan Balmer, 4 June 2010, am, pp. 155-156
[1136] Sadie Meaney, 22 February 2010, am, p. 62.
[1137] Thomas Balmer, 30 April 2010, am, pp. 47-51
[1138] Thomas Balmer, 29 April 2010, pm, pp. 47-48; 30 April 2010, am, p. 31.
[1139] Thomas Balmer, 6 May 2010, am, pp. 32-34.
[1140] Sadie Meaney, 19 February 2010, am, p. 88; see infra.
[1141] Thomas Balmer, 10 May 2010, am, pp. 4-8
[1142] Thomas Balmer, 10 May 2010, am, pp. 8-13
[1143] Sadie Meaney, 22 February 2010, am, pp. 54-55; see also Pro 259, p. 25: "Contain the Fire by Closin Doors and Windows".
[1144] Phyllis West, 23 November 2009, am, pp. 94-95
[1145] Sadie Meaney, 22 February 2010, am, pp. 8-10, 42-44.
[1146] Sadie Meaney, 22 February 2010, am, pp. 51-52, 55-56.
[1147] Allison Cumming, 19 November 2009, pm, pp. 39-42, 45-50; Phyllis West, 23 November 2009, am, pp. 82-101; Eleanor Ward, 24 November 2009, pm, pp. 20-21; Patricia Taylor, 25 November 2009, am, pp. 108-111, 138; Sadie Meaney, 23 February 2010, pm, p. 33.
[1148] Sadie Meaney, 22 February 2010, am, p. 54.
[1149] Eleanor Ward, 24 November 2009, pm, pp. 19-26.
[1150] Catherine Melia, Brian Norton, Flora Davidson. Isobel Queen claimed she had not been told the procedure, but there is evidence which would support the proposition that she had.
[1151] Flora Davidson, 12 February 2010, am, pp. 21-24, 53-54.
[1152] Eleanor Ward, 24 November 2009, pm, p. 26.
[1153] Allison Cumming, 19 November 2009, pm, pp. 47-48.
[1154] Allison Cumming, 19 November 2009, pm, pp. 48-49.
[1155] Isobel Queen, 2 December 2009, am, pp. 27-28.
[1156] Patricia Taylor, 25 November 2009, am, pp. 109-111.
[1157] Phyllis West, 23 November 2009, am, pp. 94-96, 107-108.
[1158] Phyllis West, 23 November 2009, am, pp. 130.
[1159] Isobel Queen, 2 December 2009, am, p. 25.
[1160] Isobel Queen, 2 December 2009, am, pp. 25-26.
[1161] Yvonne Carlyle, 27 November 2009, am, pp. 24-26.
[1162] Irene Richmond, 27 November 2009, pm, p. 73.
[1163] Thomas Balmer, 29 April 2010, pm, p. 43; 5 May 2010, am, pp. 17-18; Anne Balmer, 15 July 2010, am, pp. 85, 88-89.
[1164] Thomas Balmer, 29 April 2010, pm, pp. 64-65; 30 April 2010, am, pp. 38-39.
[1165] Thomas Balmer, 29 April 2010, pm, pp. 42-43, 48-50.
[1166] Anne Balmer, 15 July 2010, am, p. 90.
[1167] Anne Balmer, 15 July 2010, am, pp. 89-100.
[1168] Anne Balmer 15 July 2010, am, pp. 99-100.
[1169] 25 January 2010, pm, pp. 53-60; see also Colin Power, 11 June 2010, pm, p. 35.
[1170] Joseph Clark, 21 January 2010, am, p. 88.
[1171] Thomas Balmer, 30 April 2010, am, pp. 97-99.
[1172] Thomas Balmer, 29 April 2010, pm, pp. 63-66; 30 April 2010, am, pp. 16-18, 26-29.
[1173] 4 May 2010, p. 3.
[1174] 5 May 2010, p. 5
[1175] 5 May 2010, p. 5.
[1176] 5 May 2010, p. 8.
[1177] Alan Balmer, 3 June 2010, pm, pp. 86-88.
[1178] Colin Todd, 26 July 2010, am, pp. 96-97.
[1179] Colin Todd, 26 July 2010, am, pp. 97-99.
[1180] Colin Todd, 26 July 2010, am, pp. 104-105.
[1181] Colin Todd, 26 July 2010, am, p. 99.
[1182] Colin Todd, 26 July 2010, am, pp. 99-100.
[1183] Colin Todd, 26 July 2010, am, pp. 100-102.
[1184] Colin Todd, 26 July 2010, am, p. 100
[1185] Anne Balmer 15 July 2010, am, pp. 89-
[1186] Thomas Balmer, 29 April 2010, pm, pp. 23, 54-55.
[1187] Thomas Balmer, 29 April 2010, pm, pp. 54-55.
[1188] Thomas Balmer, 30 April 2010, am, pp. 97-99.
[1189] Pro 1094, p. 17; Thomas Balmer, 29 April 2010, pm, pp. 50-51
[1190] Pro 27, p. 7; Thomas Balmer, 29 April 2010, pm, pp. 51-52
[1191] Thomas Balmer, 29 April 2010, pm, p. 52.
[1192] Thomas Balmer, 29 April 2010, pm, p. 61; Anne Balmer, 15 July 2010, am, p. 95.
[1193] Thomas McNeilly, 22 January 2010, pm, pp. 96-105; Thomas Balmer, 29 April 2010, pm, pp. 61-62, 30 April 2010, am, p. 19.
[1194]Thomas Balmer, 30 April 2010, am, pp. 24-25.
[1195] Pro 1094, p. 16; Thomas Balmer 29 April 2010, pm, pp. 52-53
[1196] Pro 27, p. 8.
[1197] Thomas Balmer, 29 April 2010, pm, pp. 56-57.
[1198] Thomas Balmer, 29 April 2010, pm, p. 61; Anne Balmer, 15 July 2010, am, p. 96.
[1199] Pro 213, p. 11; Thomas Balmer, 29 April 2010, pm, p. 57.
[1200] Pro 1094, p. 15; Thomas Balmer, 29 April 2010, pm, pp. 57-59
[1201] Pro 27, p. 9; Thomas Balmer, 29 April 2010, pm, p. 59.
[1202] Thomas Balmer, 29 April 2010, pm, pp. 60-61; Anne Balmer, 15 July 2010, am, p. 96
[1203] Pro 27, p. 40; Thomas Balmer, 30 April 2010, am, pp. 97-99.
[1204] Thomas Balmer, 29 April 2010, pm, p. 68; 30 April 2010, am, pp. 98, 105-106.
[1205] Thomas Balmer, 29 April 2010, pm, pp. 67-68; 5 May 2010, am, p. 94.
[1206] Thomas Balmer, 4 May 2010, am, pp. 101-102.
[1207] Thomas Balmer, 4 May 2010, am, pp. 102-103.
[1208] Sadie Meaney, 19 February 2010, pm, pp. 34-35.
[1209] Thomas Balmer, 30 April 2010, am, p. 111.
[1210] Pro 1645, p. 2,
[1211] Thomas Balmer, 30 April 2010, am, pp. 111-112.
[1212] Thomas Balmer, 30 April 2010, am, pp. 111-112.
[1213] Thomas Balmer, 30 April 2010, am, p. 112.
[1214] Thomas Balmer, 4 May 2010, pm, pp. 75-76.
[1215] Thomas Balmer, 4 May 2010, pm, p. 76; 5 May 2010, am, p. 10.
[1216] Thomas Balmer, 5 May 2010, am, pp. 21-22.
[1217] Thomas Balmer, 4 May 2010, pm, pp. 74-75
[1218] 3 June 2010, am, pp. 5-8.
[1219] Alan Balmer, 3 June 2010, am, pp. 14-15, pm, pp. 44-45, 50-51.
[1220] Alan Balmer, 3 June 2010, am, p. 15.
[1221] Thomas Balmer, 30 April 2010, am, p. 112
[1222] Thomas Balmer, 30 April 2010, am, p. 113.
[1223] Sadie Meaney, 18 February 2010, pm, pp. 2-5.
[1224] Pro 250; Sadie Meaney, 18 February 2010, pm, pp. 16-18.
[1225] Thomas Balmer, 5 May 2010, am, pp. 35-36; see also 49-52.
[1226] Alan Balmer, 3 June 2010, pm, pp. 40-43.
[1227] 18 February 2010, pm, p. 31.
[1228] 22 February 2010, am, pp. 83-84.
[1229] Sadie Meaney, 18 February 2010, am, pp. 153-155; Thomas Balmer, 30 April 2010, am, pp. 107-110.
[1230] Thomas Balmer, 5 May 2010, am, pp. 63-71.
[1231] Pro 240, p. 22; cf Pro 27, p. 10; Thomas Balmer 5 May 2010, pm, pp. 8-9.
[1232] Irene Richmond, 27 November 2009, pm, pp. 75-86.
[1233] Sadie Meaney, 18 February 2010, am, pp. 157-158; Thomas Balmer, 30 April 2010, am, p. 114.
[1234] Sadie Meaney, 18 February 2010, am, pp. 158-159.
[1235] Thomas Balmer, 30 April 2010, am, pp. 119-121; 4 May 2010, pm, pp. 76-79; 5 May 2010, am, pp. 14-15, 22-23, 56-57.
[1236] Thomas Balmer, 4 May 2010, pm, pp. 78-79, 5 May 2010, am, pp. 51-52.
[1237] Thomas Balmer, 4 May 2010, pm, pp. 77-79.
[1238] Thomas Balmer, 4 May 2010, pm, p. 79; 5 May 2010, am, pp. 20-21.
[1239] Sadie Meaney, 18 February 2010, pm, p. 13, 19 February 2010, am, pp. 58-59.
[1240] Anne Daly, 11 February 2010, am, pp. 118-137
[1241] Pro 401, p. 66; Pro 316, p. 43; Pro 445, p. 61; Pro 695, p. 54; Pro 417, p. 49; Sadie Meaney, 19 February 2010, am, pp. 54-67, 74.
[1242] Eleanor Ward, 24 November 2009, pm, pp. 33-35, 44-46; she was cross-examined vigorously on this but her evidence as a whole supports the proposition in the text.
[1243] Pro 403, p. 67; Pro 410, p. 44; Sadie Meaney, 19 February 2010, am, pp. 54-67
[1244] Pro 404, p. 40; Pro 412, p. 51; Pro 437, p. 48; Sadie Meaney, 19 February 2010, am, pp. 54-67
[1245] Thomas Balmer, 5 May 2010, am, pp. 74-76.
[1246] Sadie Meaney, 18 February 2010, pm, pp. 12-13.
[1247] Sadie Meaney, 18 February 2010, am, p. 161.
[1248] Pro 240, p. 23; cf Pro 27, p. 11; Thomas Balmer, 5 May 2010, pm, p. 10.
[1249] Sadie Meaney, 19 February 2010, am, p. 67.
[1250] Rosemary Buckley, 25 November 2009, pm, pp. 54, 78-85.
[1251] Sadie Meaney, 19 February 2010, am, pp. 67-73; Thomas Balmer, 5 May 2010, am, pp. 66-70.
[1252] Sadie Meaney, 18 February 2010, am, pp. 144-146.
[1253] Thomas Balmer, 5 May 2010, am, pp. 40-45.
[1254] Sadie Meaney, 18 February 2010, am, pp. 146-150, pm, pp. 25, 28-29; 22 February 2010, am, pp. 80-82.
[1255] Phyllis West, 23 November 2009, am, pp. 120-121, 133; Tracey Farrer, 24 November 2009, am, p. 143; Flora Davidson, 12 February 2010, am, pp. 30-31.
[1256] Phyllis West, 23 November 2009, am, pp. 124-125.
[1257] Phyllis West, 23 November 2009, am, pp. 135-137
[1258] Sadie Meaney, 18 February 2010, am, pp. 150-151, pm, pp. 20-24, 19 February 2010, am, pp. 9-11; 23 February 2010, am, pp. 107-109, pm, pp. 1-7
[1259] Sadie Meaney, 23 February 2010, am, p. 106.
[1260] Sadie Meaney, 18 February 2010, pm, pp. 4-5, 28-30; 19 February 2010, am, p. 5
[1261] Sadie Meaney, 18 February 2010, pm, p. 37; 19 February 2010, pm, p. 3.
[1262] Sadie Meaney, 19 February 2010, pm, pp. 93-84.
[1263] Sadie Meaney, 18 February 2010, pm, p. 41
[1264] Sadie Meaney, 19 February 2010, am, p. 4.
[1265] Thomas Balmer, 4 May 2010, pm, pp. 44-45.
[1266] Thomas Balmer, 4 May 2010, pm, pp. 46-48.
[1267] Sadie Meaney, 18 February 2010, pm, p. 4
[1268] Sadie Meaney, 19 February 2010, am, p. 43-44; Thomas Balmer, 5 May 2010, pm, pp. 4-5.
[1269] Maureen King, 16 April 2010.
[1270] Eleanor Ward, 24 November 2009, pm, pp. 22, 24-26.
[1271] Flora Davidson, 12 February 2010, am, pp. 20-21.
[1272] Sadie Meaney, 19 February 2010, am, pp. 93-94; see also Phyllis West, 23 November 2009, am, p. 127.
[1273] Sadie Meaney, 23 February 2010, am, p. 81.
[1274] Sadie Meaney, 19 February 2010, am, pp. 103-104, pm, p. 22; Thomas Balmer, 5 May 2010, am, p. 91; Alan Balmer, 3 June 2010, pm, pp. 17-19.
[1275] Sadie Meaney, 18 February 2010, pm, pp. 34-36.
[1276] Sadei Meaney, 19 February 2010, am, pp. 49-52
[1277] Sadie Meaney, 23 February 2010, am, pp. 81-82.
[1278] Thomas Balmer, 30 April 2010, am, p. 99.
[1279] Thomas Balmer, 30 April 2010, am, pp. 99-100.
[1280] Sadie Meaney, 19 February 2010, am, pp. 53-54; 22 February 2010, am, pp. 87-88.
[1281] Sadie Meaney, 22 February 2010, am, pp. 89-92.
[1282] Alexis Coster, 24 November 2009, am, pp. 81-82, 85-86.
[1283] Catherine Melia, 11 February 2010, pm, pp. 67-68, 70-79, 81.
[1284] Pro 259, p. 253.
[1285] Sadie Meaney, 22 February 2010, pm, pp. 71-76, 23 February 2010, am, pp. 54-59.
[1286] Thomas Balmer, 29 April 2010, am, pp. 83-86.
[1287] Joseph Clark, 20 January 2010, pm, p. 92
[1288] Sadie Meaney, 18 February 2010, pm, pp. 5-16.
[1289] Thomas Balmer, 4 May 2010, pm, p. 34.
[1290] Thomas Balmer, 4 May 2010, pm, pp. 20, 23-26, 31-32; 5 May 2010, am, pp. 113-117.
[1291] Sadie Meaney, 22 February 2010, pm, pp. 18-19, 39-40.
[1292] Thomas Balmer, 29 April 2010, am, pp. 80-83.
[1293] Thomas Balmer, 4 May 2010, pm, pp. 34-35.
[1294] Joseph Clark, 20 January 2010, pm, pp. 73-75, 21 January 2010, am, pp. 47-49, 59-60; Sadie Meaney, 18 February 2010, pm, pp. 4-6Thomas Balmer, 5 May 2010, pm, pp. 34-36
[1295] Thomas Balmer, 5 May 2010, pm, pp. 31-32, 36-37.
[1296] Sadie Meaney, 18 February 2010, pm, pp. 27-28.
[1297] Thomas Balmer, 29 April 2010, am, p. 87.
[1298] Sadie Meaney, 19 February 2010, pm, pp. 27-28.
[1299] Thomas Balmer, 5 May 2010, pm, pp. 22-26.
[1300] Phyllis West, 23 November 2009, am, pp. 108-115; Sadie Meaney, 18 February 2010, pm, p. 13; Thomas Balmer, 29 April 2010, am, p. 86.
[1301] Sadie Meaney, 18 February 2010, pm, p. 8.
[1302] Mhairi Sadiq 29 July 2010, pm, p. 41.
[1303] Partricia Taylor, 25 November 2009, am, p. 115.
[1304] Mhairi Sadiq, 29 July 2010, pm, pp. 41-42.
[1305] Mhairi Sadiq, 29 July 2010, pm, p. 42
[1306] Patricia Taylor, 25 November 2009, am, p. 115.
[1307] Mhairi Sadiq, 29 July 2010, pm, pp. 42-44, 46-50.
[1308] Sadie Meaney, 18 February 2010, pm, p. 18.
[1309] Sadie Meaney, 18 February 2010, pm, p. 18.
[1310] Isobel Queen, 2 December 2009, am, p. 63.
[1311] Eleanor Ward, 24 November 2009, pm, p. 22
[1312] Catherine Melia, 11 February 2010, pm, p. 80.
[1313] Flora Davidson, 12 February 2010, am, p.. 44-45.
[1314] Rosemary Buckley, 25 November 2009, pm, p. 60
[1315] Margaret Holmes, 12 February 2010, am, p. 127.
[1316] Brian Norton, 26 November 2009, am, p. 42.
[1317] Irene Richmond, 27 November 2009, pm, p. 89.
[1318] Yvonne Carlyle, 27 November pm, p. 24
[1319] Sadie Meaney, 23 February 2010, am, pp. 98-99.
[1320] Isobel Queen, 2 December 2009, am, pp. 34-40.
[1321] Isobel Queen, 2 December 2009, am pp. 30-31
[1322] Isobel Queen, 2 December 2009, am, p. 25, 3 December 2009, am, pp. 21-24.
[1323] Isobel Queen, 3 December 2009, am, pp. 24-25.
[1324] Isobel Queen, 2 December 2009, am, pp. 25-26.
[1325] Pro 243, p. 35.
[1326] Isobel Queen, 2 December 2009, am, pp. 56-58.
[1327] Sadie Meaney, 23 February 2010, am, pp. 100-102.
[1328] Sadie Meaney, 23 February 2010, am, pp. 103-105; Colin Todd, 28 July 2010, am, pp. 46-47.
[1329] Isobel Queen, 2 December 2009, am, p. 55.
[1330] Isobel Queen, 2 December 2009, am, p. 63.
[1331] Brian Norton, 26 November 2009, am, pp. 39-41.
[1332] Brian Norton, 26 November 2009, am, p. 42.
[1333] 27 November 2009, pm, p. 78.
[1334] Pro 316, p. 45.
[1335] Colin Todd, 28 July 2010, am, pp. 47-49.
[1336] Irene Richmond, 27 November 2009, p. 89.
[1337] Yvonne Carlyle, 27 November 2009, pm, pp. 12-13
[1338] Yvonne Carlyle, 27 November 2009, pm, pp. 13-14.
[1339] Yvonne Carlyle, 27 November 2009, pm, pp. 13-15, 22-24.
[1340] Yvonne Carlyle, 27 November 2009, am, p. 24.
[1341] Yvonne Carlyle, 27 November 2009, am, p. 25.
[1342] Yvonne Carlyle, 27 November 2009, am, p. 26.
[1343] Yvonne Carlyle, 27 November 2009, pm, pp. 16-22.
[1344] Yvonne Carlyle, 27 November 2009, pm, p. 25.
[1345] Yvonne Carlyle, 27 November 2009, pm, p. 25
[1346] Colin Todd, 28 July 2010, am, pp. 51-55
[1347] Sadie Meaney, 18 February 2010, am, pp. 140-142
[1348] Sadie Meaney, 18 February 2010, am, p. 141-142
[1349] Sadie Meaney, 19 February 2010, pm, pp. 3-5.
[1350] Sadie Meaney, 22 February 2010, pm, pp. 13-14
[1351] Sadie Meaney, 22 February 2010, pm, pp. 14-15.
[1352] Sadie Meaney, 19 February 2010, am, pp. 89-90; Thomas Balmer, 4 May 2010, am, pp. 35-39.
[1353] Sadie Meaney, 18 February 2010, pm, p. 19.
[1354] Sadie Meaney, 18 February 2010, pm, p. 19; 19 February 2010, am, pp. 89-90.
[1355] Phyllis West, 23 November 2009, pm, pp. 60-64; Sadie Meaney, 19 February 2010, am, pp. 90-91
[1356] Yvonne Carlyle, 27 November 2009, am, p. 9; Sadie Meaney, 22 February 2010, am, pp. 31-32.
[1357] Allison Cumming, 19 November 2009, pm, pp. 14-15; Sadie Meaney, 19 February 2010, am, pp. 92-93; 22 February 2010, am, pp. 30-37.
[1358] Sadie Meaney, 22 February 2010, am, pp. 38-39.
[1359] Sadie Meaney, 22 February 2010, am, pp. 42-4
[1360] Janette Midda, 17 June 2010, am, pp. 8-49
[1361] Janette Midda, 17 June 2010, am, pp. 8-49.
[1362] Colin Todd, 27 July 2010, am, pp. 94-100.
[1363] Sadie Meaney, 22 February 2010, am, p. 24.
[1364] Colin Todd, 27 July 2010, am, p. 100
[1365] Martin Shipp, 15 April 2010, pm, pp. 28-29.
[1366] Martin Shipp, 15 April 2010, pm, pp. 26-27.
[1367] Thomas Balmer, 7 May 2010, am, p. 76
[1368] Thomas Balmer, 4 May 2010, am, pp. 39-40; 7 May 2010, am, pp. 84-88.
[1369] Thomas Balmer, 4 May 2010, am, pp. 42-43.
[1370] Pro 1115, p. 6; Thomas Balmer, 29 April 2010, pm, pp. 25.
[1371] Thomas Balmer, 29 April 2010, pm, pp. 23-24.
[1372] Thomas McNeilly, 25 January 2010, am, p. 117.
[1373] Thomas Balmer, 4 May 2010, am, p. 33.
[1374] Sadie Meaney, 19 February 2010, am, p. 95.
[1375] Sadie Meaney, 19 February 2010, am, p. 94.
[1376] Sadie Meaney, 19 February 2010, am, pp. 92-93.
[1377] Sadie Meaney, 19 February 2010, pm, pp. 6-7.
[1378] Sadie Meaney, 19 February 2010, pm, pp. 7-9, 11, 22 February 2010, am, pp. 1-3.
[1379] Pro 213, p. 21; Thomas Balmer, 5 May 2010, pm, pp. 37-38.
[1380] Thomas Balmer, 5 May 2010, pm, pp. 39-40.
[1381] Thomas Balmer, 5 May 2010, pm, pp. 40-45.
[1382] Sadie Meaney, 19 February 2010, pm, pp. 91-92.
[1383] Pro 530, p. 5; Sadie Meaney, 18 February 2010, pm, pp. 43-45
[1384] Pro 530, p. 7; Sadie Meaney, 18 February 2010, pm, pp. 54-63Thomas Balmer, 5 May 2010, pm, pp. 54-57.
[1385] Sadie Meaney, 18 February 2010, pm, pp. 44-46, 19 February 2010, pm, pp. 40-42; cp Thomas Balmer, 5 May 2010, pm, pp. 47-54.
[1386] Alan Balmer, 3 June 2010, am, pp. 27-28.
[1387] Sadie Meaney, 19 February 2010, pm, pp. 38-40.
[1388] Sadie Meaney, 19 February 2010, pm, pp. 42-50, 55-56
[1389] Sadie Meaney, 19 February 2010, pm, pp. 42-50, 52-53
[1390] Sadie Meaney, 19 February 2010; 22 February 2010, am, pp. 11-20.
[1391] Sadie Meaney, 18 February 2010, pm, pp. 44-46;
[1392] Joseph Clark, 21 January 2010, pm, pp. 3-4; Sadie Meaney, 19 February 2010, pm, p. 50.
[1393] Sadie Meaney, 18 February 2010, pm, pp. 45-46
[1394] Eleanor Ward, 24 November 2009, pm, pp. 38-41; Rosemary Buckley, 25 November 2009, pm, pp. 62-63; Irene Richmond, 27 November 2009, pm, pp. 92-95.
[1395] Sadie Meaney, 18 February 2010, pm, pp. 47-53
[1396] Anne Balmer, 15 July 2010, am, pp. 134-135.
[1397] Thomas Balmer, 5 May 2010, pm, pp. 54, 59.
[1398] Eleanor Ward, 24 November 2009, pm, p. 36.
[1399] Martin Shipp, 15 April 2010, am, p. 144; Colin Todd, 26 July 2010, pm, pp. 59-61.
[1400] Martin Shipp, 15 April 2010, am, p. 144.
[1401] Colin Todd, 26 July 2010, pm, pp. 57-59.
[1402] Thomas Balmer, 4 May 2010, pm, p. 35; also pp. 38-39.
[1403] Sadie Meaney, 18 February 2010, am, p. 116-117; 19 February 2010, am, p. 89.
[1404] Sadie Meaney, 18 February 2010, am, pp. 118-119.
[1405] Patricia Taylor, 25 November 2009, am, pp. 117-120.
[1406] Phyllis West, 23 November 2009, am, pp. 101-107
[1407] Sadie Meaney, 18 February 2010, am, p. 118; Thomas Balmer, 30 April 2010, am, pp. 29-30; 4 May 2010, pm, p. 39
[1408] Thomas Balmer, 5 May 2010, am, p. 32.
[1409] Thomas Balmer, 5 May 2010, am, p. 32
[1410] Thomas Balmer, 4 May 2010, pm, p. 39.
[1411] Thomas Balmer, 5 May 2010, am, p. 26.
[1412] Thomas Balmer, 5 May 2010, am, pp. 28-29.
[1413] Thomas Balmer, 5 May 2010, am, pp. 29-30.
[1414] Isobel Queen, 2 December 2009, am, p. 41; Yvonne Carlyle, 27 November 2009, am, pp. 26, 32; Sadie Meaney, 23 February 2010, pm, p. 61.
[1415] Yvonne Carlyle, 27 November 2009, am, p. 27; Isobel Queen, 2 December 2009, am, p. 41.
[1416] Sadie Meaney, 18 February 2010, am, p. 120; cf Isobel Queen, 2 December 2009, am, p. 41.
[1417] Yvonne Carlyle, 27 November 2009, am, pp. 26-28; Isobel Queen, 2 December 2009, am, p. 41.
[1418] Isobel Queen, 2 December 2009, am, p. 46
[1419] Yvonne Carlyle, 27 November 2009, am, pp. 30-32.
[1420] Isobel Queen, 2 December 2009, am, p. 42.
[1421] Isobel Queen, 2 December 2009, am, pp. 43-44
[1422] Yvonne Carlyle, 27 November 2009, am, p. 32.
[1423] Yvonne Carlyle, 27 November 2009, am, p. 28; Isobel Queen, 2 December 2009, am, p. 42.
[1424] Yvonne Carlyle, 27 November 2009, am, pp. 28-29.
[1425] Isobel Queen, 2 December 2009, am, p. 43.
[1426] Yvonne Carlyle, 27 November 2009, am, p. 29; cf Isobel Queen, 2 December 2009, am, p. 43.
[1427] Yvonne Carlyle, 27 November 2009, am, p. 29.
[1428] Joseph Clark, 21 January 2010, am, pp. 100-130, pm, pp. 1-3; cp Sadie Meaney, 18 February 2010, am, pp. 119-120, 23 February 2010, pm, pp. 61-62.
[1429] Yvonne Carlyle, 27 November 2009, am, p. 29; Joseph Clark, 21 January 2010, am, p. 104.
[1430] Joseph Clark, 21 January 2010, am, p. 104
[1431] Colin Todd, 26 July 2010, pm, pp. 63-64.
[1432] Colin Todd, 26 July 2010, pm, pp. 64-65
[1433] Colin Todd, 26 July 2010, pm, pp. 62-64.
[1434] Colin Todd, 26 July 2010, pm, pp. 65-66.
[1435] Joseph Clark, 21 January 2010, am, pp. 126-127.
[1436] Colin Todd, 26 July 2010, pm, p. 65.
[1437] Thomas Balmer, 5 May 2010, pm, pp. 60-73, 6 May 2010, am, pp. 115-117; see also Alan Balmer, 3 June 2010, pm, pp. 33-34.
[1438] Colin Todd, 26 July 2010, pm, pp. 66-68.
[1439] Joseph Clark, 21 January 2010, am, p. 104.
[1440] Joseph Clark, 21 January 2010, am, p. 94.
[1441] James Reid, 16 February 2010, am, p. 36.
[1442] James Reid, 16 February 2010, am, pp. 52-55.
[1443] James Reid, 16 February 2010, am, pp. 38-42, 17 February 2010, pm, pp. 41-43.
[1444] James Reid, 16 February 2010, am, pp. 43-47.
[1445] James Reid, 16 February 2010, am, p. 47.
[1446] James Reid, 16 February 2010, am, pp. 48-51.
[1447] James Reid, 17 February 2010, am, p. 99.
[1448] James Reid, 16 February 2010, am, pp. 57-59.
[1449] James Reid, 16 February 2010, am, pp. 58-59.
[1450] James Reid, 16 February 2010, pm, pp. 18-19.
[1451] James Reid, 16 February 2010, am, pp. 63-65; 76-84.
[1452] James Reid, 16 February 2010, am, pp. 63-76, 78, 80; 101-104; Alan Balmer, 3 June 2010, am, pp. 55-61; cf 4 June 2010, am, pp. 7-14, 127-132.
[1453] Alan Balmer, 3 June 2010, am, pp. 59-73.
[1454] James Reid, 16 February 2010, p. 60; Alan Balmer, 3 June 2010, am, pp. 42, 46-47.
[1455] James Reid, 16 February 2010, p. 60; 16 February 2010, pm, pp. 43-44; Alan Balmer, 3 June 2010, am, pp. 47, 50-54.
[1456] James Reid 17 February 2010, am, pp. 11-12, pm, pp. 36-37.
[1457] James Reid, 18 February 2010, am, pp. 33-34.
[1458] James Reid, 16 February 2010, am, pp. 92-94.
[1459] Thomas Balmer, 7 May 2010, am, pp. 43, 52-57.
[1460] James Reid, 16 February 2010, am, p. 88, pm, pp. 5-6.
[1461] James Reid, 17 February 2010, pm, pp. 24-25.
[1462] James Reid, 17 February 2010, pm, p. 23.
[1463] James Reid, 17 February 2010, am, pp. 95-98.
[1464] Carol Ann Brown, 12 August 2010, am, pp. 5-6.
[1465] James Reid, 16 February 2010, am, pp. 111-112.
[1466] James Reid, 17 February 2010, am, pp. 44-47
[1467] Pro 216, p. 5; James Reid, 16 February 2010, am, pp. 94-97
[1468] Pro 216, p. 6; James Reid, 16 February 2010, am, pp.
[1469] James Reid, 16 February 2010, am, pp. 105-109.
[1470] James Reid, 16 February 2010, am, pp. 113-117.
[1471] Pro 216, pp. 43-44; James Reid, 17 February 2010, am, pp. 48ff.
[1472] Colin Todd, 27 July 2010, pm, pp. 38-42..
[1473] Pro 818, p. 59; Sadie Meaney, 22 February 2010, pm, pp. 41-42; Alan Balmer, 3 June 2010, am, pp. 75-76.
[1474] Sadie Meaney, 22 February 2010, pm, p. 42; Thomas Balmer, 7 May 2010, pm, pp. 42-43, 53-54.
[1475] Thomas Balmer, 7 May 2010, pm, pp. 52-53.
[1476] Thomas Balmer, 7 May 2010, pm, pp. 53-54; Alan Balmer, 3 June 2010, am pp. 78-80, 89-91.
[1477] Thomas Balmer, 7 May 2010, pm, p. 46.
[1478] Thomas Balmer, 7 May 2010, pm, p. 51.
[1479] James Reid, 16 February 2010, am, p. 85.
[1480] James Reid, 16 February 2010, am, p. 89.
[1481] Alan Balmer, 3 June 2010, am, pp. 83-84.
[1482] Alan Balmer, 3 June 2010, am, p. 84.
[1483] Alan Balmer, 3 June 2010, am, pp. 84-85.
[1484] James Reid, 16 February 2010, pm, pp. 33-37.
[1485] James Reid, 16 February 2010, pm, p. 78, 17 February 2010, pm, p. 56.
[1486] James Reid 16 February 2010, pm, pp. 33-37.
[1487] James Reid, 16 February 2010, am, pp. 91-92; Alan Balmer, 3 June 2010, am, pp. 84-85, 103-104, pm, pp. 16-17.
[1488] James Reid, 16 February 2010, am, pp. 119-120, pm, p. 25; cp pp. 99-104.
[1489] Alan Balmer, 3 June 2010, ; 4 June 2010, am, pp. 21-23, 38-39
[1490] James Reid, 16 February 2010, am, pp. 90-91.
[1491] James Reid, 17 February 2010, pm, pp. 88-90
[1492] Sadie Meaney, 18 February 2010, pm, pp. 21-22; 23 February 2010, am, p. 91.
[1493] Alan Balmer, 3 June 2010, am, pp. 107, 111-112, pm, pp. 3-12.
[1494] Alan Balmer, 3 June 2010, am, pp. 112-113.
[1495] Alan Balmer, 3 June 2010, pm, pp. 20-22.
[1496] Alan Balmer, 2 June 2010, pm, pp. 90-94, 3 June 2010, am, pp. 114-121, pm, p. 6.
[1497] Alan Balmer 3 June 2010, pm, p. 73; 4 June 2010, am, pp. 104-126
[1498] Alan Balmer, 3 June 2010, am, pp. 87-88, 4 June 2010, am, pp. 42-3, 72-3.
[1499] James Reid, 16 February 2010, pm, pp. 1ff
[1500] James Reid, 17 February 2010, am, pp. 11-15.
[1501] James Reid, 17 February 2010, am, pp. 9-11.
[1502] James Reid, 16 February 2010, pm, pp. 46-49.
[1503] James Reid, 17 February 2010, am, pp. 91-93, pm, pp. 81-84.
[1504] James Reid, 16 February 2010, pm, pp. 56-71
[1505] James Reid, 16 February 2010, pm, pp. 73-74.
[1506] James Reid, 16 February 2010, pm, pp. 85-87; 17 February 2010, am, p. 60.
[1507] James Reid, 16 February 2010, pm, pp. 85-87, 17 February 2010, am, pp. 1-5.
[1508] James Reid, 17 February 2010, am, pp. 6-8.
[1509] James Reid, 17 February 2010, am, pp. 49-50, 56-57.
[1510] James Reid, 17 February 2010, am, pp. 50-52.
[1511] James Reid, 17 February 2010, am, pp. 59-
[1512] James Reid, 16 February 2010, pm, p. 26, 17 May 2010, am, p. 83; Thomas Balmer, 5 May 2010, pm, p. 22
[1513] Alan Balmer, 3 June 2010, am, pp. 91-93
[1514] Alan Balmer, 3 June 2010, am, pp. 93-94
[1515] Alan Balmer, 3 June 2010, am, pp. 98-99, 4 June 2010, am, p. 146
[1516] Thomas Balmer, 5 May 2010, pm, pp. 22-26; 7 May 2010, am, p. 50.
[1517] James Reid, 17 May 2010, am, p. 84.
[1518] Sadie Meaney, 18 February 2010, pm, pp. 19-25.
[1519] Thomas Balmer, 7 May 2010, am, pp. 50-51.
[1520] Carol Ann Brown, 12 August 2010, am, p. 6.
[1521] Thomas Balmer, 7 May 2010, am, p. 52.
[1522] Thomas Balmer, 4 May 2010, am, p. 75; 5 May 2010, pm, pp. 79-80, 6 May 2010, pm, pp. 18-19.
[1523] Thomas Balmer, 6 May 2010, pm, pp. 22-23, 28-35.
[1524] Thomas Balmer, 7 May 2010, am, pp. 2-25, 33-35.
[1525] Thomas Balmer, 7 May 2010, am pp. 35-38.
[1526] Alan Balmer, 3 June 2010, am, pp. 47-49, 79.
[1527] James Reid, 17 February 2010, pm, pp. 60-61.
[1528] James Reid, 16 February 2010, am, pp. 60-61.
[1529] Alan Balmer, 3 June 2010, am, p. 75.
[1530] Alan Balmer, 3 June 2010, am, pp. 46-47, 75.
[1531] Production 1829; pp4-5;
[1532] Sir Graham Meldrum, 3 August 2010, am, p32; Ian Falconer, 4 February 2010, pm, pp40-41;
[1533] Jeff Ord, 1 July 2010, pm, p74;
[1534] Ian Falconer, 4 February 2010, pm, p40;
[1535] Sir Graham Meldrum, 3 August 2010, am, pp34-35;
[1536] Hugh Adie, 29 June 2010, pm, pp57-58;
[1537] Production 1410, p15 et seq.; Ian Falconer, 4 February 2010, pm, pp49 et seq.
[1538] Production 182, p3;
[1539] Production 182, generally; Ian Falconer, 4 February 2010, pm, p41;
[1540] Ian Falconer, 4 February 2010, pm, pp43-44;
[1541] Ian Falconer, 4 February 2010, pm, pp53-56; Production 1410, page 18, paragraph 3.1;
[1542] Ian Falconer, 4 February 2010, pm, pp57-58, 64-65
[1543] Production 1410, p18, paragraph 3.2; Ian Falconer, 4 February 2010, pm, pp58-60;
[1544] Victoria Neill, 4 December 2009, am, p130;
[1545] Production 1410, p18, paragraph 5.2.4(i); Ian Falconer, 4 February 2010, pm, pp60-63;
[1546] Victoria Neill, 4 December 2009, am, pp82-91;
[1547] Production 1410, page19, paragraph 3.5
[1548] Ian Falconer, 4 February 2010, pm, pp67-68;
[1549] Production 1410, page 19, paragraph 3.6; Ian Falconer, 4 February 2010, pm, pp69-70;
[1550] Ian Falconer, 4 February 2010, pm, pp72-73;
[1551] Production 1410, page 19, paragraphs 3.7, 3.8; Ian Falconer, 4 February 2010, pm, pp73-76;
[1552] Production 1410, page 20, paragraph 4.1; Ian Falconer, 4 February 2010, pm, pp76-78;
[1553] Ian Falconer, 4 February 2010, pm, pp77-78;
[1554] Ian Falconer, 4 February 2010, pm, p79;
[1555] Ian Falconer, 4 February 2010, pm, pp81-82;
[1556] Ian Falconer, 4 February 2010, pm, pp89-90;
[1557] Ian Falconer, 4 February 2010, pm, pp95-97;
[1558] Ian Falconer, 5 February 2010, am, pp5-7;
[1559] Ian Falconer, 4 February 2010, pm, pp42-44, 99;
[1560] Production 182, p4;
[1561] Ian Falconer, 4 February 2010, p104;
[1562] Ian Falconer, 4 February 2010, pm, pp101-103;
[1563] Ian Falconer, 5 February 2010, am, pp2-4;
[1564] Ian Falconer, 5 February 2010, am, p10;
[1565] Ian Falconer, 5 February 2010, am, p55 (cross);
[1566] Ian Falconer, 5 February 2010, am, pp82-83 (re-exam);
[1567] Ian Falconer, 5 February 2010, am, pp15-16;
[1568] Jeremy Eckford, 5 February 2010, am, p91;
[1569] Jeremy Eckford, 5 February 2010, am, pp92-93;
[1570] Jeremy Eckford, 5 February 2010, am, pp99-100;
[1571] Jeremy Eckford, 5 February 2010, am, pp104;
[1572] Production 1410, page 20, paragraph 4.1
[1573] Jeremy Eckford, 5 February 2010, am, pp114-115;
[1574] Daniel Longmuir, 5 February 2010, am, p122;
[1575] Daniel Longmuir, 5 February 2010, am, p125;
[1576] Daniel Longmuir, 5 February 2010, am, pp123-135;
[1577] Daniel Longmuir, 5 February 2010, am, pp137-143;
[1578] Desmond Keating, 5 February 2010, am, p145;
[1579] Desmond Keating, 5 February 2010, am, p150;
[1580] Desmond Keating, 5 March 2010, am, p153;
[1581] Desmond Keating, 5 March 2010, am, p157;
[1582] David Fleming, 5 March 2010, pm, pp5-6
[1583] David Fleming, 5 March 2010, pm, pp13-14;
[1584] David Fleming, 5 March 2010, pm, p20;
[1585] David Fleming, 5 March 2010, pm, p23;
[1586] Alexander Anderson, 5 February 2010, pm, pp25-26;
[1587] Production 182, p3;
[1588] Alexander Anderson, 5 February 2010, pm, pp27-29;
[1589] Alexander Anderson, 5 February 2010, pm, p33;
[1590] Alexander Anderson, 5 February 2010, pm, pp34-37;
[1591] Michael Wilson, 5 February 2010, pm, pp38-39;
[1592] Michael Wilson, 5 February 2010, pm, pp41-42;
[1593] Michael Wilson, 5 February 2010, pm, p43;
[1594] James Muir, 8 February 2010, am, pp1-4;
[1595] Production 887I showed their arrival point; James Muir, 8 February 2010, am, pp7-11;
[1596] James Muir, 8 February 2010, am, pp12-13;
[1597] James Muir, 8 February 2010, am, pp15-17;
[1598] James Muir, 8 February 2010, am, pp18-20;
[1599] James Muir, 8 February 2010, am, pp24-25;
[1600] James Muir, 8 February 2010, am, pp25-26;
[1601] James Muir, 8 February 2010, am, pp27-28;
[1602] James Muir, 8 February 2010, am, p7;
[1603] Robert Deans, 5 February 2010, pm, pp50-52;
[1604] Robert Deans, 5 February 2010, pm, pp52-53;
[1605] Robert Deans, 5 February 2010, pm, p53;
[1606] Robert Deans, 5 February 2010, pm, pp55-58;
[1607] Robert Deans, 5 February 2010, pm, p65;
[1608] Robert Deans, 5 February 2010, pm, pp59-62;
[1609] Robert Deans, 5 February 2010, pm, pp63-64;
[1610] Robert Deans, 5 February 2010, pm, pp66-67;
[1611] Robert Deans, 5 February 2010, pm, p68;
[1612] Robert Deans, 5 February 2010, pm, pp69-70;
[1613] Robert Deans, 5 February 2010, pm, pp71-72;
[1614] Robert Deans, 5 February 2010, pm, pp73-74;
[1615] Robert Deans, 5 February 2010, pm, pp75-76;
[1616] Robert Deans, 5 February 2010, pm, pp79-83;
[1617] Robert Deans, 5 February 2010, pm, pp83-84;
[1618] Robert Deans, 5 February 2010, pm, p91;
[1619]Production 182, p4; Robert Deans, 5 February 2010, pm, p92;
[1620] Robert Deans, 5 February 2010, pm, p89;
[1621] Robert Deans, 5 February 2010, pm, p92;
[1622] Robert Deans, 5 Februayr 2010, pm, p95;
[1623] Robert Deans, 5 February 2010, pm, p93;
[1624] Thomas Balmer, 6 May 2010, pm, p2; 11 May 2010, am, pp21-30;
[1625] Thomas Balmer, 11 May 2010, p20;
[1626] Production 182, p4;
[1627] Paul Caldwell, 7 December 2009, pm, pp116-117;
[1628] Submissions of SF&R, p2, para. 7;
[1629] See para. 61, supra.;
[1630] See below "Risk Catagorisation of Rosepark", para. 27;
[1631] See paras. 44, 63;
[1632] James Clark, 9 December 2009, pm, p10;
[1633] Hugh Adie, 29 June 2010, pm, p60;
[1634] Thomas Lynch, 4 March 2010, pm, p12;
[1635] Cf Thomas Lynch, 4 March 2010, pm, pp12-13;
[1636] Edward Kelly, 10 February 2010, pm, pp47-48;
[1637] Edward Kelly, 10 February 2010, pm, pp49-50;
[1638] Edward Kelly, 10 February 2010, pm, p51;
[1639] Brian Sweeney, 12 July 2010, am, pp94-96;
[1640] Edward Kelly, 10 February 2010, pm, pp52-54; Brian Sweeney, 12 July 2010, am, p62;
[1641] Edward Kelly, 10 February 2010, pm, pp54-55;
[1642] Edward Kelly, 10 February 2010, pm, p56;
[1643] Edward Kelly, 10 February 2010, pm, p57
[1644] Edward Kelly, 10 February 2010, pm, pp58-63;
[1645] Edward Kelly, 10 February 2010, pm, pp66-67;
[1646] Production 1956, p6;
[1647] Edward Kelly, 10 February 2010, pm, pp82-83;
[1648] Edward Kelly, 10 February 2010, pm, pp72-73;
[1649] Production 1957, pp32, 37
[1650] Edward Kelly, 11 February 2010, am, pp56-63
[1651] Victoria Neill, 4 December 2009, am, p82;
[1652] See explanation of Sir Graham Meldrum, 3 August 2010, am, pp48-54; 6 August 2010, am, pp63-67;
[1653] Edward Kelly, 10 February 2010, pm, pp85-87;
[1654] Edward Kelly, 10 February 2010, pm, pp92-94;
[1655] Edward Kelly, 10 February 2010, pm, p97
[1656] Edward Kelly, 10 February 2010, pm, p102
[1657] Edward Kelly, 10 February 2010, pm, p106;
[1658] Edward Kelly, 11 February 2010, am, pp47-53
[1659] Edward Kelly, 11 February 2010, am, p85;
[1660] Edward Kelly, 11 February 2010, am. pp92-94;
[1661] Edward Kelly, 10 February 2010, pm, pp109-110;
[1662] Edward Kelly, 11 February 2010, am, pp5-6;
[1663] Edward Kelly, 11 February 2010, am, pp21-25
[1664] See also Brian Sweeney, 12 July 2010, am, p67;
[1665] Production 1409; Edward Kelly, 11 February 2010, am, pp29-36;
[1666] Sir Graham Meldrum, 3 August 2010, am, p61;
[1667] Sir Graham Meldrum, 3 August 2010, am, pp38-44; 54-55;
[1668] Sir Graham Meldrum, 3 August 2010, am, pp46-47;
[1669] Sir Graham Meldrum, 3 August 2010, am, pp53-54;
[1670] Sir Graham Meldrum, 3 August 2010, am, pp58-61;
[1671] Sir Graham Meldrum, 3 August 2010, am, pp61-64;
[1672] Production 182, page 3; Sir Graham Meldrum, 3 August 2010, am, pp66-67;
[1673] Ian Falconer, 5 February 2020, am, p21;
[1674] Robert Deans, 5 February 2010, pm, p34;
[1675] Sir Graham Meldrum, 3 August 2010, am, pp64-66;
[1676] Production 887A;
[1677] Sir Graham Meldrum, 3 August 2010, am, pp64-77;
[1678] Sir Graham Meldrum, 3 August 2010, am, p78;
[1679] Sir Graham Meldrum, 3 August 2010, am, pp80-82;
[1680] Robert Deans, 5 February 2010, pm, p91;
[1681] Paul Caldwell, 7 January 2010, pm, p116:;
[1682] Sir Graham Meldrum, 6 August 2010, pm, pp97-100;
[1683] Jeff Ord, 1 July 2010, pm, pp88-89;
[1684] Jeff Ord, 1 July 2010, pm, p88;
[1685] Jeff Ord, 1 July 2010, pm, pp89-90;
[1686] Jeff Ord, 1 July 2010, pm, 72-74; 2 July 2010, am, pp3, 20-22;
[1687] Brian Sweeney, 12 July 2010, am, pp25-26;
[1688] Brian Sweeney, 12 July 2010, am, p27;
[1689] Brian Sweeney, 12 July 2010, am, pp33-34;
[1690] Brian Sweeney, 12 July 2010, am, pp34-38
[1691] Brian Sweeney, 12 July 2010, am, pp41-42;
[1692] Brian Sweeney, 12 July 2010, am, pp42-43;
[1693] Brian Sweeney, 12 July 2010, am, pp44-48; cf production 206, p4, "ADDRISKCAT" at 0438 hours;
[1694] Brian Sweeney, 12 July 2010, am, pp82-85;
[1695] Brian Sweeney, 12 July 2010, am, pp112-118;
[1696] Brian Sweeney, 12 July 2010, am, pp120-121;
[1697] See para. 34, supra.;
[1698] See Chapter 1, paras. 6.3, 6.4;
[1699] Sir Graham Meldrum, 6 August 2010, am, p163;
[1700] Sir Graham Meldrum, 6 August 2010, am, p164;
[1701] Sir Graham Meldrum, 6 August 2010, am, pp166-167;
[1702] Sir Graham Meldrum, 6 August 2010, am, p164;
[1703] See "Risk Catagorisation", para. 12, supra.
[1704] Production 1410, para. 5.2.4(i)
[1705] Production 1927;
[1706] Production 1899;
[1707] Production 1899, regulation 1(1);
[1708] Production 1899, regulation 11(1);
[1709] Production 1899, regulation 10(1);
[1710] Production 1395; and see Thomas Lynch, 4 March 2010, pm, pp26-31; Margaret MacCallum, 3 March 2010, pp2-4;
[1711] Thomas Lynch, 4 March 2003, pm, pp19-20;
[1712] Production 1395, page 27;
[1713] Production 256; and see Thomas Lynch, 4 March 2010, pm, pp35-
[1714] Production 256; Thomas Lynch, 4 March 2010, pm, pp35-44;
[1715] Margaret MacCallum, 3 March 2010, am, pp6-7;
[1716] Production 256, p39 (manuscript);
[1717] Thomas Lynch, 4 March 2010, am, p82;
[1718] Mairi Macleod, 25 February 2010, am, pp110-111; Edward Hattie, 26 February 2010, am, pp83-84; Margaret MacCallum, 2 March 2010, pm, pp12-14;
[1719] Lance Blair, 9 March 2010, am, pp72-76;
[1720] Andrew Walker, 9 March 2010, pm, p65;
[1721] Mairi MacLeod, 25 February 2010, am, pp120-121;
[1722] Edward Hattie, 26 February 2010, am, p105; Thomas Lynch, 4 March 2010, am, pp48-49; Yvonne Lawton, 26 February 2010, pm, p17; Margaret MacCallum, 2 March 2010, pm, pp18-19; 3 March 2010, am, p72; Angela Westrop, 21 April 2010, pm, pp68-70;
[1723] Thomas Lynch, 4 March 2010, am, p109;
[1724] Lance Blair, 9 March 2010, am, p98; Andrew Walker, 9 March 2010, pm, pp80-81;
[1725] Lance Blair, 9 March 2010, am, pp98-99; Thomas Lynch, 4 March 2010, pm, pp87-88;
[1726] Yvonne Lawton, 2 March 2010, am, pp95-96;
[1727] Rod Sylvester Evans, 23 June 2010, pp83-85; 94-95;
[1728] Edward Hattie, 26 February 2010, am, p79;
[1729] Edward Hattie, 26 February 2010, am, pp80, 83-84;
[1730] Edward Hattie, 26 February 2010, am, p85;
[1731] Edward Hattie, 26 February 2010, am, p91
[1732] Edward Hattie, 26 February 2010, am, pp92-94;
[1733] Edward Hattie, 26 February 2010, am, pp94-95;
[1734] Edward Hattie, 26 February 2010, am, p106;
[1735] Edward Hattie, 26 February 2010, am, pp115-118;
[1736] Thomas Lynch, 4 March 2010, am, pp76-77;
[1737] Thomas Lynch, 4 March 2010, am, p79;
[1738] Thomas Lynch, 4 March 2010, am, pp80-81;
[1739] Thomas Lynch, 4 March 2010, am, p82;
[1740] Thomas Lynch, 4 March 2010, am, p140;
[1741] Thomas Lynch, 4 March 2010, am, pp139-141;
[1742] Thomas Lynch, 4 March 2010, am, pp138-139;
[1743] Thomas Lynch, 4 March 2010, am, pp144-147;
[1744] Thomas Lynch, 4 March 2010, am, pp152- 154;
[1745] Thomas Lynch, 4 March 2010, pm, pp4-7
[1746] Thomas Lynch, 4 March 2010, pm, p7;
[1747] Production 213, p4;
[1748] Thomas McNeilly, 25 January 2010, am, pp10-11;
[1749] Thomas Lynch, 4 March 2010, pm, pp18-19;
[1750] Thomas Lynch, 4 March 2010, am, pp100-101
[1751] Thomas Lynch, 4 March 2010, am, pp102-104;
[1752] Thomas Lynch, 4 March 2010, pm, pp40-41, under reference to paragraph 16.1 of the Health Board's Guidance Notes of June 1999;
[1753] Thomas Lynch, 4 March 2010, am, pp96-97;
[1754] Thomas Lynch, 4 March 2010, am, pp99-100;
[1755] Thomas Lynch, 4 March 2010, am, pp101-102
[1756] Thomas Lynch, 4 March 2010, pm, pp3-4;
[1757] Thomas Lynch, 4 March 2010, pm, pp9-11; production 813, page 12;
[1758] Thomas Lynch, 4 March 2010, pm, pp12-13;
[1759] Mairi Macleod, 25 February 2010, am, p106;
[1760] Mairi Macleod, 25 February 2010, am, p111;
[1761] Mairi Macleod, 25 February 2010, am, pp112-115;
[1762] Mairi Macleod, 25 February 2010, am, pp148-149;
[1763] Mairi Macleod, 25 February 2010, am, pp115-116;
[1764] Mairi Macleod, 25 February 2010, am, p116;
[1765] Mairi Macleod, 25 February 2010, am, pp161-164
[1766] Mairi Macleod, 25 February 2010, am, p117;
[1767] Mairi MacLeod, 25 February 2010, pm, p2;
[1768] Yvonne Lawton, 26 February 2010, pm, pp13-14;
[1769] Yvonne Lawton, 26 February 2010, pm, p22
[1770] Yvonne Lawton, 26 February 2010, pm, pp22-23;
[1771] Yvonne Lawton, 26 February 2010, pm, p23;
[1772] Yvonne Lawton, 26 February 2010, pm, pp29-32;
[1773] Yvonne Lawton, 26 February 2010, pm, p32;
[1774] Yvonne Lawton, 26 February 2010, pm, p33;
[1775] Yvonne Lawton, 26 February 2010, pm, p34;
[1776] Yvonne Lawton, 26 February 2010, pm, pp48-49;
[1777] Yvonne Lawton, 26 February 2010, pm, pp50-54; Production 1395, p29, paragraph 2.11;
[1778] Yvonne Lawton, 26 February 2010, pm, p83;
[1779] Yvonne Lawton, 2 March 2010, am, pp33-37, 55;
[1780] Yvonne Lawton, 2 March 2010, pm, p6;
[1781] Margaret MacCallum, 2 March 2010, pm, pp11-12;
[1782] Margaret MacCallum, 2 March 2010, pm, p15;
[1783] Margaret MacCallum, 2 March 2010, pm, pp17-18;
[1784] Margaret MacCallum, 2 March 2010, pm, pp19-21;
[1785] Margaret MacCallum, 2 March 2010, pm, pp21-22;
[1786] Margaret MacCallum, 2 March 2010, pm, pp40-41;
[1787] Margaret MacCallum, 2 March 2010, pm, pp41-42
[1788] Margaret MacCallum, 2 March 2010, pm, p44; 3 March 2010, am, pp99-102;
[1789] Angela Westrop, 21 April 2010, pm, pp60-61;
[1790] Angela Westrop, 21 April 2010, pm, pp62-63;
[1791] Angela Westrop, 21 April 2010, pm, pp70-73;
[1792] Angela Westrop, 21 April 2010, pm, pp68-69;
[1793] Mairi Macleod, 25 February 2010, am, p118
[1794] Production 256, p39; Thomas Lynch, 4 March 2010, pm, p42; Margaret MacCallum, 2 March 2010, pm, p21;
[1795] Edward Hattie, 26 February 2010, am, p109;
[1796] Mairi Macleod, 25 February 2010, am, pp121-122;
[1797] Thomas Lynch, 4 March 2010, pm, pp1-2;
[1798] Thomas Lynch, 4 March 2010, pm, pp42-43;
[1799] Yvonne Lawton, 26 February 2010, pm, pp22-24;
[1800] Margaret MacCallum, 3 March 2010, am, pp41-42;
[1801] Margaret MacCallum, 2 March 2010, pm, pp41-42
[1802] Angela Westrop, 21 April 2010, pm, pp75-76;
[1803] Edward Hattie, 26 February 2010, am, pp98-99;
[1804] Edward Hattie, 26 February 2010, pm, pp9-11;
[1805] Mairi MacLeod, 25 February 2010, am, p117;
[1806] Thomas Lynch, 4 March 2010, am, p88;
[1807] Thomas Lynch, 4 March 2010, am, pp88-90;
[1808] Yvonne Lawton, 26 February 2010, pm, pp27-28
[1809] Margaret MacCallum, 2 March 2010, pm, pp67-68;
[1810] Margaret MacCallum, 2 March 2010, pm, p68;
[1811] Margaret MacCallum, 2 March 2010, pm, pp69-72
[1812] Angela Westrop, 21 April 2010, pm, pp96-98;
[1813] Lance Blair, 9 March 2010, am, pp103-104;
[1814] Thomas McNeilly, 22 January 2010, pm, pp4-5
[1815] Thomas McNeilly, 22 January 2010, pm, p5;
[1816] Thomas McNeilly, 22 January 2010, pm, pp12-14;
[1817] Production 818, pp8-16; Edward Hattie, 26 February 2010, am, pp123-133;
[1818] Production 817, pp217-226;
[1819] Production 213, p4;
[1820] Mairi Macleod, 25 February 2010, pm, pp8-10;
[1821] Mairi MacLeod, 25 February 2010, pm, pp10-11;
[1822] Mairi MacLeod, 25 February 2010, pm, p11;
[1823] Mairi MacLeod, 25 February 2010, pm, p13;
[1824] Mairi MacLeod, 25 February 2010, pm, p15;
[1825] Mairi MacLeod, 25 February 2010, pm, pp16-28;
[1826] Production 817, p210;
[1827] Mairi MacLeod, 25 February 2010, pm, pp16-17;
[1828] Mairi MacLeod, 25 February 2010, pm, p22; Edward Hattie, 26 February 2010, am, p151;
[1829] Edward Hattie, 26 February 2010, am, p148;
[1830] Mairi MacLeod, 25 February 2010, pm, pp18-19;
[1831] Edward Hattie, 26 February 2010, am, pp145-146;
[1832]Mairi MacLeod, 25 February 2010, pm, p20;
[1833] Production 27, p8; Edward Hattie, 26 February 2010, am, pp148-150;
[1834] Mairi MacLeod, 25 February 2010, pm, p20;
[1835] Production 215, page 6;
[1836] Production 215, page 60;
[1837] Mairi MacLeod, 25 February 2010, pm, pp22-28;
[1838] Production 817, pp186-194; Mairi MacLeod, 25 February 2010, pm, pp28-
[1839] Mairi MacLeod, 25 February 2010, pm, p29-30
[1840] Mairi MacLeod, 25 February 2010, pm, p30;
[1841] Mairi MacLeod, 25 February 2010, pm, p31;
[1842] Mairi MacLeod, 25 February 2010, pm, pp31-32;
[1843] Mairi MacLeod, 25 February 2010, pm, p33;
[1844] Mairi MacLeod, 25 February 2010, pm, pp34-35;
[1845] Mairi MacLeod, 25 February 2010, pm, pp36-37;
[1846] Production 817, pp172-181;
[1847] Production 817, p181;
[1848] Mairi MacLeod, 25 February 2010, pm, p38;
[1849] Mairi MacLeod, 25 February 2010, pm, pp38-39;
[1850] Production 27
[1851] Mairi MacLeod, 25 February 2010, pm, p45;
[1852] Mairi MacLeod, 25 February 2010, pm, pp39-40;
[1853] Mairi MacLeod, 25 February 2010, pm, pp40-43;
[1854] Production 817, pp158-167;
[1855] Production 817, page 167;
[1856] Mairi MacLeod, 25 February 2010, pm, p48;
[1857] Mairi MacLeod, 25 February 2010, pm, pp48-50
[1858] Mairi MacLeod, 25 February 2010, pm, pp50-51;
[1859] Mairi MacLeod, 25 February 2010, pm, pp51-53; Production 27, page 8;
[1860] Mairi MacLeod, 25 February 2010, pm, pp53-54; Production 27, page 17;
[1861] Mairi MacLeod, 25 February 2010, pm, pp54-55;
[1862] Mairi MacLeod, 25 February 2010, pm, pp55-57;
[1863] Mairi MacLeod, 25 February 2010, pm, p58;
[1864] Mairi MacLeod, 25 February 2010, pm, pp58-59;
[1865] Mairi MacLeod, 25 February 2010, pm, pp60-61;
[1866] Mairi MacLeod, 25 February 2010, pm, pp61-66;
[1867] Mairi MacLeod, 25 February 2010, pm, pp68-71; Production 571, pp3, 12;
[1868] Mairi MacLeod, 25 February 2010, pm, pp66-67;
[1869] Production 817, pp123-132;
[1870] Yvonne Lawton, 26 February 2010, pm, p64;
[1871] Yvonne Lawton, 26 February 2010, pm, p65; Production 27, p9;
[1872] Edward Hattie, 26 February 2010, am, pp166-167;
[1873] Yvonne Lawton, 26 February 2010, pm, pp68-69;
[1874] Yvonne Lawton, 26 February 2010, pm, p71;
[1875] Production 817, pp106-115;
[1876] Yvonne Lawton, 26 February 2010, pm, pp73-75; Production 27, p22;
[1877] Yvonne Lawton, 26 February 2010, pm, pp76-77;
[1878] Yvonne Lawton, 26 February 2010, pm, pp77-78;
[1879] Production 817, pp94-99
[1880] Yvonne Lawton, 26 February 2010, pm, p79;
[1881]Yvonne Lawton, 26 February 2010, pm, p79;
[1882] Yvonne Lawton, 26 February 2010, pm, Pp80-81;
[1883] Yvonne Lawton, 26 February 2010, pm, p83;
[1884] Yvonne Lawton, 26 February 2010, pm, pp85-86;
[1885] Yvonne Lawton, 26 February 2010, pm, pp86-88;
[1886] Production 817, pp83-87;
[1887] Yvonne Lawton, 2 March 2010, pm, p4;
[1888] Yvonne Lawton, 2 March 2010, am, pp4-6; cf Production 27, p23;
[1889] Yvonne Lawton, 2 March 2010, am, pp6-7;
[1890] Yvonne Lawton, 2 March 2010, am, pp8-11;
[1891] Yvonne Lawton, 2 March 2010, am, pp11-12;
[1892] Production 218, pp124-130;
[1893] Yvonne Lawton, 2 March 2010, am, p15;
[1894] Yvonne Lawton, 2 March 2010, am, pp15-16;
[1895] Yvonne Lawton, 2 March 2010, am, pp17-18;
[1896] Yvonne Lawton, 2 March 2010, am, pp19-20;
[1897] Yvonne Lawton, 2 March 2010, am, pp18-19;
[1898] Yvonne Lawton, 2 March 2010, am, p20;
[1899] Production 811
[1900] Yvonne Lawton, 2 March 2010, am, pp22-30;
[1901] Yvonne Lawton, 2 March 2010, am, pp30-39;
[1902] Production 218, p123; Yvonne Lawton, 2 March 2010, am, p39;
[1903] Production 218, pp85-90;
[1904] Rosslyn Rafferty, 29 June 2010, am, pp5-6;
[1905] Rosslyn Rafferty, 29 June 2010, am, pp17-20; cf. Thomas Balmer, 29 April 2010, am, p104;
[1906] Rosslyn Rafferty, 29 June 2010, am p20;
[1907] Production 812; Margaret MacCallum, 2 March 2010, pm, pp72-73;
[1908] Margaret MacCallum, 2 March 2010, pm, pp74-75;
[1909] Margaret MacCallum, 2 March 2010, pm, pp74-78;
[1910] Margaret MacCallum, 2 March 2010, pm, pp80-81; Production 182, p3;
[1911] Margaret MacCallum, 2 March 2010, pm, pp78-79;
[1912] Production 27, p25;
[1913] Margaret MacCallum, 2 March 2010, pm, pp79-80;
[1914] Margaret MacCallum, 2 March 2010, pm, pp82-86;
[1915] Margaret MacCallum, 2 March 2010, pm, p86;
[1916] Margaret MacCallum, 3 March 2010, am, pp10-11;
[1917] Margaret MacCallum, 3 March 2010, am, p13;
[1918] Margaret MacCallum, 3 March 2010, am, pp13-15;
[1919] Margaret MacCallum, 3 March 2010, am, pp16-19;
[1920] Margaret MacCallim, 3 March 2010, am, pp20-24;
[1921] Margaret MacCallum, 3 March 2010, am, pp24-25;
[1922] Margaret MacCallum, 3 March 2010, am, pp26-29;
[1923] Thomas Balmer, 29 April 2010, am, pp117-119; see also chapter 15, paras. 6-10;
[1924] Margaret MacCallum, 3 March 2010, am, pp30-31;
[1925] Margaret MacCallum, 3 March 2010, am, p30; cf Production 860A;
[1926] Production 218, p71;
[1927] Margaret MacCallum, 3 March 2010, am, pp31-32;
[1928] Margaret MacCallum, 3 March 2010, am, pp32-33;
[1929] Margaret MacCallum, 3 March 2010, am, pp34-35;
[1930] Thomas Balmer, 4 May 2010, am, pp27-28;
[1931] Thomas Balmer, 29 April 2010, am, pp96-104; Anne Balmer, 15 July 2010, am, pp107-117;
[1932] Brigid Boyle, 16 February 2010, am, pp23-28;
[1933] Margaret MacCallum, 3 March 2010, am, p36;
[1934] Production 813;
[1935] Yvonne Lawton, 2 March 2010, am, pp64-67;
[1936] Yvonne Lawton, 2 March 2010, am, p70;
[1937] Production 27, p11; Yvonne Lawton, 2 March 2010, am, pp70-71;
[1938] Yvonne Lawton, 2 March 2010, am, pp71-72;
[1939] Yvonne Lawton, 2 March 2010, am, pp76-78;
[1940] Yvonne Lawton, 2 March 2010, am, pp78-79;
[1941] Production 218, pp36-40;
[1942] Production 27, pp4-5, 7-9; Margaret MacCallum, 3 March 2010, am, pp42-49;
[1943] Margaret MacCallum, 3 March 2010, am, p49;
[1944] Production 27, pp16-28; Margaret MacCallum, 3 March 2010, am, pp57-61;
[1945] Sarah Meaney, 18 February 2010, pm, pp38-39;
[1946] Yvonne Lawton, 2 March 2010, am, pp89-90;
[1947] Yvonne Lawton, 2 March 2010, am, pp90-91;
[1948] Yvonne Lawton, 2 March 2010, am, p92;
[1949] Production 218, p30;
[1950] Production 1394,
[1951] Margaret MacCallum, 3 March 2010, am, pp67-68;
[1952] Margaret MacCallum, 3 March 2010, am, pp69-70;
[1953] Margaret MacCallum, 3 March 2010, am, pp70-72;
[1954] Margaret MacCallum, 3 March 2010, am, pp72-74;
[1955] Margaret MacCallum, 3 March 2010, am, pp74-75;
[1956] Margaret MacCallum, 3 March 2010, am, pp76-77
[1957] Sarah Meaney, 18 February 2010, pm, p37;
[1958] Margaret MacCallum, 3 March 2010, am, pp79-80;
[1959] Margaret MacCallum, 3 March 2010, am, p80; Production 218, p30;
[1960] Margaret MacCallum, 3 March 2010, am, p83;
[1961] Margaret MacCallum, 3 March 2010, am, p84;
[1962] Margaret MacCallum, 3 March 2010, am, pp84-85;
[1963] Margaret MacCallum, 3 March 2010, am, p87;
[1964] Margaret MacCallum, 3 March 2010, am, p88;
[1965] Margaret MacCallum, 3 March 2010, am, pp89-90;
[1966] Margaret MacCallum, 3 March 2010, am, p91;
[1967] Margaret MacCallum, 3 March 2010, am, p103;
[1968] Margaret MacCallum, 3 March 2010, am, p91;
[1969] Margaret MacCallum, 3 March 2010, am, pp91-92;
[1970] Margaret MacCallum, 3 March 2010, am, pp92-94; Production 27, p30;
[1971] Margaret MacCallum, 3 March 2010, am, pp94-96
[1972] Margaret MacCallum, 3 March 2010, am, p97;
[1973] Margaret MacCallum, 3 March 2010, am, p104;
[1974] Margaret MacCallum, 3 March 2010, am, p104;
[1975] Margaret MacCallum, 3 March 2010, am, p105;
[1976] Margaret MacCallum, 3 March 2010, am, pp108-120;
[1977] Margaret MacCallum, 3 March 2010, am, pp120-121;
[1978] Cf Production 243, p19;
[1979] Margaret MacCallum, 3 March 2010, am, pp122-124;
[1980] Productions 316, 401, and 445 respectively;
[1981] Margaret MacCallum, 3 March 2010, am, pp125-129; cf. Sarah Meaney, 18 February 2010, pm, p37;
[1982] Margaret MacCallum, 3 March 2010, pm, pp6-8;
[1983] Cf IHB Carmichael, Sudden Deaths and Fatal Accident Inquiries, 3rd Edition, para. 5-76;
[1984] See Crown submissions, chapter 1, para. 6, citing Determination in relation to the Death of James McAlpine, 17 January 1986, Sheriff Kearney;
[1985] 1976 Act, section 4(7);
[1986] Simmons v British Steel plc 2004 SC (HL) 94, per Lord Hope of Craighead at 102; McGhee v National Coal Board 1973 SC (HL) 37, per Lord Reid at 53;
[1987] Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, per Lord Reid at 31, 32;
[1988] Health Board submissions, p10, last full paragraph;
[1989] See Crown submissions, chapter 45(5), para. 10;
[1990] 1990 Reulations, reg. 13(1);
[1991] See eg. paras. 163, 249 supra.;
[1992] Health Board submissions, p16;
[1993] Production 213, p4;
[1994] Health Board submissions, p17, para. 3;
[1995] The Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No.2) Order 2006, schedule 1, para. 6; Production 1879;
[1996] 2002 Regulations, reg. 19(3)(b)(c) and (e)
[1997] Elizabeth Hunter, 9 June 2010, am, pp90-91;
[1998] Production 1383;
[1999] Elizabeth Hunter, 9 June 2010, am, pp91-92, 94-95;
[2000] Elizabeth Hunter, 9 June 2010, am, pp92-93;
[2001] Elizabeth Hunter, 9 June 2010, am, pp95-97;
[2002] Elizabeth Hunter, 9 June 2010, am, p98;
[2003] Elizabeth Hunter, 9 June 2010, am, p104;
[2004] Elizabeth Hunter, 9 June 2010, am, pp99-100;
[2005] Elizabeth Hunter, 9 June 2010, am, pp100-102;
[2006] Elizabeth Hunter, 9 June 2010, am, pp106-110; Production 1383, paras. 5.1-5.5;
[2007] Elizabeth Hunter, 9 June 2010, am, p110;
[2008] Elizabeth Hunter, 9 June 2010, am, pp111-112;
[2009] Elizabeth Hunter, 9 June 2010, am, p113;
[2010] Elizabeth Hunter, 9 June 2010, am, pp113-114;
[2011] Elizabeth Hunter, 9 June 2010, am, pp116-117;
[2012] Elizabeth Hunter, 9 June 2010, am, pp119-120;
[2013] Elizabeth Hunter, 9 June 2010, am, pp120-122;
[2014] Production 1384;
[2015] Elizabeth Hunter, 9 June 2010, am, pp123-125;
[2016] Elizabeth Hunter, 9 June 2010, am, pp128-129;
[2017] Elizabeth Hunter, 9 June 2010, am, pp129-130, 136
[2018] Elizabeth Hunter, 9 June 2010, am, p137;
[2019] Elizabeth Hunter, 9 June 2010, am, pp141-142;
[2020] Production 1384, para. 47; Elizabeth Hunter, 9 June 2010, pm, pp3-4;
[2021] Elizabeth Hunter, 9 June 2010, pm, p21;
[2022] Elizabeth Hunter, 9 June 2010, pm, pp8-10;
[2023]Elizabeth Hunter, 9 June 2010, pm, pp12-13;
[2024] Production 1385, p94
[2025] Production 1385, p96
[2026] Elizabeth Hunter, 9 June 2010, pm, pp15-19;
[2027] Ronald Hill , 25 June 2010, pm, pp68-72;
[2028] Ronald Hill, 25 June 2010, am, p5;
[2029] Elizabeth Hunter, 9 June 2010, pm, pp20-26;
[2030] Elizabeth Hunter, 9 June 2010, pm, pp30-32;
[2031] Elizabeth Hunter, 9 June 2010, pm, pp77-78
[2032] Elizabeth Hunter, 9 June 2010, pm, pp32-33;
[2033] Elizabeth Hunter, 9 June 2010, pm, pp49-50;
[2034] Elizabeth Hunter, 9 June 2010, pm, pp68-78;
[2035] Elizabeth Hunter, 9 June 2010, pm, p70;
[2036] Fire Services Act 1947, section 1(1)(f), production 1829;
[2037] Jacqueline Roberts, 1 June 2010, am, p58;
[2038] Elizabeth Hunter, 10 June 2010, am, pp28-30, 36-44;
[2039] Elizabeth Hunter, 10 June 2010, am, pp44-47, 74;
[2040] Ronald Hill, 25 June 2010, am, pp15-17;
[2041] Ronald Hill, 25 June 2010, am, p28;
[2042] Ronald Hill, 25 June 2010, am, pp18-20;
[2043] Production 1835;
[2044] Schedule 1, para. 6(a);
[2045] Production 1871;
[2046] Production 1737;
[2047] Jacqueline Roberts, 1 June 2010, am , pp2-3;
[2048] Jacqueline Roberts, 1 June 2010, am, p57;
[2049] Jacqueline Roberts, 1 June 2010, am, pp59-61;
[2050] Jacqueline Roberts, 1 June 2010, am, pp63-65;
[2051] Jacqueline Roberts, 1 June 2010, am, pp65-67;;
[2052] Ronald Hill, 25 June 2010, am, pp9-10;
[2053] Ronald Hill, 25 June 2010, am, pp12-13;
[2054] Ronald Hill, 25 June, 2010, am, p10
[2055] Elizabeth Norton, 26 April 2010, am, pp71-72;
[2056] John Russell, 9 August 2010, pm, pp70-71;
[2057] Production 1382; John Russell, 9 August 2010, pm, pp71-75;
[2058] Elizabeth Norton, 22 April 2010, pm, pp79-80, 83;
[2059] Elizabeth Norton, 22 April 2010, pm, pp82-83; 26 April 2010, am, p2;
[2060] Elizabeth Norton, 22 April 2010, pm, pp88-89;
[2061] Elizabeth Norton, 22 April 2010, pm, pp89-91;
[2062] Production 1385, p5;
[2063] Elizabeth Norton, 26 April 2010, am, pp5-6;
[2064] Elizabeth Norton, 26 April 2010, am, pp6-10; Production 1385, para. 33;
[2065] Ronald Hill, 25 June 2010, am, pp37-39;
[2066] Elizabeth Norton, 26 April 2010, pp15-20;
[2067] Elizabeth Norton, 22 April 2010, pp92-93;
[2068] Elizabeth Norton, 22 April 2010, pm, pp96-98;
[2069] Elizabeth Norton, 22 April 2010, pm, p99;
[2070] Elizabeth Norton, 26 April 2010, am, pp28-33;
[2071] Care Commission Submissions, para. 18;
[2072] Production 818, p58;
[2073] Elizabeth Norton, 26 April 2010, am, p35;
[2074] Elizabeth Norton, 26 April 2010, am, pp36-37;
[2075] Elizabeth Norton, 26 April 2010, am, p61;
[2076] Care Commission Submissions, para. 22;
[2077] Elizabeth Norton, 26 April 2010, am, pp42-47;
[2078] Elizabeth Norton, 26 April 2010, am, pp37-40;
[2079] Elizabeth Norton, 26 April 2010, am, p52;
[2080] Mala Thomson, 22 April 2010, pm, pp33-34;
[2081] Marie Paterson, 13 May 2010, pm, p92;
[2082] Production 818, p58;
[2083] Elizabeth Norton, 26 April 2010, am, pp52-54; Ronald Hill, 25 June 2010, pm, pp54-55;
[2084] Ronald Hill, 25 June 2010, pm, pp34-35;
[2085] Elizabeth Norton, 26 April 2010, am, pp55-57;
[2086] Production 1951; Elizabeth Norton, 26 April 2010, am, pp57-61;
[2087] Elizabeth Norton, 26 April 2010, am, pp61-63;
[2088] Elizabeth Norton, 26 April 2010, am, pp63-64;
[2089] Production 818, p59;
[2090] Elizabeth Norton, 26 April 2010, am, pp64-65;
[2091] Elizabeth Norton, 26 April 2010, am, p73;
[2092] Elizabeth Norton, 26 April 2010, am, p74;
[2093] Elizabeth Norton, 26 April 2010, am, pp68-69;
[2094] Elizabeth Norton, 26 April 2010, am, p69;
[2095] Cf. National Care Standard 5;
[2096] Jacqueline Roberts, 1 June 2010, am, pp120-122;
[2097] Jacqueline Roberts, 1 June 2010, am, pp123-124;
[2098] Annabell Fowles, 10 June 2010, pm, pp43-46;
[2099] Ronald Hill, 25 June 2010, am, pp38-40;
[2100] Jacqueline Roberts, 1 June 2010, am, p73;
[2101] Ronald Hill, 25 June 2010, am, p55;
[2102] Mala Thomson, 22 April 2010, am, p114;
[2103] Mala Thomson, 22 April 2010, am, p116;
[2104] Mala Thomson, 22 April 2010, am, pp117-118;
[2105] Mala Thomson, 22 April 2010, pm, p32;
[2106] Mala Thomson, 22 April 2010, pp134-135;
[2107] Ronald Hill, 25 June 2010, am, pp37-39;
[2108] Marie Paterson, 13 May 2010, am, p8;
[2109] Marie Paterson, 13 May 2010, pm, pp36-37;
[2110] Morag McHaffie, 8 March 2010, am, p19;
[2111] Morag McHaffie, 8 March 2010, am, pp84-85;
[2112] Production 818, p126;
[2113] Marie Paterson, 13 May 2010, am, pp10-11;
[2114] Marie Paterson, 13 May 2010, am, pp10-11;
[2115] Marie Paterson, 13 May 2010, am, p61; Morag McHaffie, 8 March 2010, am, pp30-32
[2116] Morag McHaffie, 8 March 2010, am, p34;
[2117] Morag McHaffie, 8 March 2010, am, p24;
[2118] Marie Paterson, 13 May 2010, am, pp66-67;
[2119] Morag McHaffie, 8 March 2010, am, p25; Marie Paterson, 13 May 2010, am, pp70-71;
[2120] Marie Paterson, 13 May 2010, am, p73;
[2121] Morag McHaffie, 8 March 2010, am, pp37-38;
[2122] Marie Paterson, 13 May 2010, am, p63;
[2123] Elizabeth Norton, 26 April 2010, am, pp64-65;
[2124] Care Commission submissions, para. 25;
[2125] Morag McHaffie, 8 March 2010, am, p39; Marie Paterson, 13 May 2010, am, p73;
[2126] Morag McHaffie, 8 March 2010, am, p40; Marie Paterson, 13 May 2010, am, p75;
[2127] Morag McHaffie, 8 March 2010, am, p40;
[2128] Production 583; Morag McHaffie, 8 March 2010, am, pp41-44;
[2129] Morag McHaffie, 8 March 2010, am, pp44-46;
[2130] Morag McHaffie, 8 March 2010, am, pp48-49;
[2131] Morag McHaffie, 8 March 2010, am, pp50-51; Marie Paterson, 13 May 2010, am, pp76-77;
[2132] Morag McHaffie, 8 March 2010, am, p55;
[2133] Morag McHaffie, 8 March 2010, am, pp59-60; Marie Paterson, 13 May 2010, am, p83;
[2134] Morag McHaffie, 8 March 2010, am, pp62-63;
[2135] Marie Paterson, 13 May 2010, am, pp84-86;
[2136] Morag McHaffie, 8 March 2010, am, pp68-69;
[2137] Morag McHaffie, 8 March 2010, am, pp69-70;
[2138] Marie Paterson, 13 May 2010, am, p88;
[2139] Marie Paterson, 13 May 2010, am, pp89-91;
[2140] Morag McHaffie, 8 March 2010, am, pp70-73; cf, production 221, page 17;
[2141] Marie Paterson, 13 May 2010, am, pp15, 109;
[2142] Morag McHaffie, 8 March 2010, am, p74;
[2143] Marie Paterson, 13 May 2010, am, pp110-113;
[2144] Production 216,p8; Marie Paterson, 13 May 2010, am, p114;
[2145] Morag McHaffie, 8 March 2010, am, pp75-78; cf Production 570;
[2146] Cf. Production 182, page 3;
[2147] Morag McHaffie, 8 March 2010, am, pp78-82;
[2148] Morag McHaffie, 8 March 2010, am, pp83-84;
[2149] Morag McHaffie, 8 March 2010, am, pp85-86;
[2150] Morag McHaffie, 8 March 2010, am, p19;
[2151] Production 818, p70; Morag McHaffie, 8 March 2010, am, p86;
[2152] Morag McHaffie, 8 March 2010, am, p87;
[2153] Morag McHaffie, 8 March 2010, am, pp88-89; Marie Paterson, 13 May 2010, am, pp119-120;
[2154] Morag McHaffie, 8 March 2010, am, p90;
[2155] Morag McHaffie, 8 March 2010, am, p91;
[2156] Morag McHaffie, 8 March 2010, am, pp92-93;
[2157] Marie Paterson, 13 May 2010, am, p63;
[2158] Morag McHaffie, 8 March 2010, am, pp92-93;
[2159] Morag McHaffie, 8 March 2010, am, p94;
[2160] Morag McHaffie, 8 March 2010, am, p113;
[2161] Production 818, pp103-124;
[2162] Production 818, pp85-101;
[2163] Marie Paterson, 13 May 2010, am, pp124-145;
[2164] Marie Paterson, 13 May 2010, pm, p66;
[2165] Marie Paterson, 13 May 2010, am, pp124-125;
[2166] Marie Paterson, 13 May 2010, am, p127;
[2167] Marie Paterson, 13 May 2010, am, p138;
[2168] Marie Paterson, 13 May 2010, am, p143;
[2169] Marie Paterson, 13 May 2010, am, pp139-141;
[2170] Morag McHaffie, 8 March 2010, am, pp106-107
[2171] Morag McHaffie, 8 March 2010, am, p107;
[2172] Morag McHaffie, 8 March 2010, am, pp112-121; pm, pp1-
[2173] Production 818, p111;
[2174] Production 243, p32;
[2175] Morag McHaffie, 8 March 2010, pm, p4;
[2176] Morag McHaffie, 8 March 2010, pm, p6;
[2177] Morag McHaffie, 8 March 2010, pm, pp8-10; cf. Production 215, page 3;
[2178] Marie Paterson, 13 May 2010, pm, pp7-14;
[2179] Morag McHaffie, 8 March 2010, pm, pp13-14; cf production 27, page 13, 32;
[2180] Morag McHaffie, 8 March 2010, pm, p40; Marie Paterson, 13 May 2010, am, pp147-148;
[2181] Morag McHaffie, 8 March 2010, am, p96;
[2182] Marie Paterson, 13 May 2010, am, pp98-99;
[2183] Morag McHaffie, 8 March 2010, pm, p13;
[2184] Marie Paterson, 13 May 2010, am, p97;
[2185] Morag McHaffie, 8 March 2010, pm, p17;
[2186] Marie Paterson, 13 May 2010, pm, pp74-75;
[2187] Morag McHaffie, 8 March 2010, pm, pp20-22;
[2188] Morag McHaffie, 8 March 2010, pm, pp39-40; Marie Paterson, 13 May 2010, am, pp15-16;
[2189] Marie Paterson, 13 May 2010, pm, p23;
[2190] Marie Paterson, 13 May 2010, pm, p23;
[2191] Marie Paterson, 13 May 2010, pm, p66;
[2192] Morag McHaffie, 8 March 2010, pm, pp24-27;
[2193]Morag McHaffie, 8 March 2010, pm, pp27-28; Production 818, p125;
[2194] Marie Paterson, 13 May 2010, pm, p16; Jacqueline Roberts, 1 June 2010, am, p93;
[2195] Marie Paterson, 13 May 2010, pm, pp16-18; Production 818, pp136-138;
[2196] Morag McHaffie, 8 March 2010, pm, p29
[2197] Morag McHaffie, 8 March 2010, pm, p62;
[2198] Production 818, p128;
[2199] Marie Paterson, 13 May 2010, pm, p24;
[2200] Marie Paterson, 13 May 2010, pm, pp18-19;
[2201] Production 818, p130;
[2202] Marie Paterson, 13 May 2010, pm, p27;
[2203] Marie Paterson, 13 May 2010, pm, pp28-29;
[2204] Marie Paterson, 13 May 2010, pm, pp37-38;
[2205] Marie Paterson, 13 May 2010, pm, pp38-39;
[2206] Marie Paterson, 13 May 2010, pm, p43;
[2207] Marie Paterson, 13 May 2010, pm, pp43-45;
[2208] Marie Paterson, 13 May 2010, pm, p45;
[2209] Marie Paterson, 13 May 2010, pm, pp45-46;
[2210] Marie Paterson, 13 May 2010, pm, p47;
[2211] Production 818, pp194-196;
[2212] Marie Paterson, 13 May 2010, pm, p50;
[2213] Marie Paterson, 13 May 2010, pm, p52;
[2214] Marie Paterson, 13 May 2010, pm, pp52-53;
[2215] Marie Paterson, 13 May 2010, pm, pp52-56;
[2216] Marie Paterson, 13 May 2010, pm, p57;
[2217] Marie Paterson, 13 May 2010, pm, pp58-59;
[2218] Sadie Meaney
[2219] Production 818, pp238-239;
[2220] Marie Paterson, 13 May 2010, pm, pp61-62;
[2221] Marie Paterson, 13 May 2010, pm, p62; Production 818, p251;
[2222] Production 818, p252;
[2223] Marie Paterson, 13 May 2010, pm, p64;
[2224] Production 818, p252;
[2225] Marie Paterson, 13 May 2010, pm, pp65-66;
[2226] Production 818, p128, 130;
[2227] Pages 25, 27, Afternoon Session, Monday 23 November 2009;
[2228] Pages 27-28, Afternoon Session, Monday 23 November 2009;
[2229] Pages 38-39, Afternoon Session, Monday 23 November 2009;
[2230] Tracey Farrer, 24 November 2010, am, pp125-126;
[2231] Tracey Farrer, 24 November 2010, am, pp131 136;
[2232] See production 885G;
[2233] Tracey Farrer, 24 November 2010, am, pp133-136; production 885G;
[2234] Tracey Farrer, 24 November 2010, am, p137;
[2235] Tracey Farrer, 24 November 2010, am, p135;
[2236] Tracey Farrer, 24 November 2010, am, pp135-136;
[2237] Tracey Farrer, 24 November 2010, am, pp137-138
[2238] Tracey Farrer, 24 November 2010, am, p138;
[2239] Page 42, Afternoon Session, Monday 23 November 2009;
[2240] Pages 46-47, Afternoon Session, Monday 23 November 2009; Page 53, Morning Session, Thursday 26 November 2009;
[2241] Pages 48-49, Afternoon Session, Monday 23 November 2009;
[2242] Page 93, Morning Session, Wednesday 2 December 2009;
[2243] Pages 93-94, Morning Session, Wednesday 2 December 2009;
[2244] Isobel Queen, 2 December 2009, am, p93;
[2245] Page 25, Morning Session, Wednesday 2 December 2009;
[2246] Pages 26-28, Morning Session, Wednesday 2 December 2009;
[2247] Brian Norton, 26 November 2009, am, pp53-54;
[2248] Brian Norton, 26 November 2009, am, p56;
[2249] Brian Norton, 26 November 2009, am, pp58-59;
[2250] Brian Norton, 26 November 2009, am, p 60;
[2251] Brian Norton, 26 November 2009, am, pp61-64;
[2252] Brian Norton, 26 November 2009, am, p65;
[2253] Brian Norton, 26 November 2009, am, p72;
[2254] Brian Norton, 26 November 2009, am, pp72-74;
[2255] Brian Norton, 26 November 2009, am, pp74-77;
[2256] Brian Norton, 26 November 2009, am, p78;
[2257] Brian Norton, 26 November 2009, am, pp83-85;
[2258] Brian Norton, 26 November 2009, am, pp78-79;
[2259] Brian Norton, 26 November 2009, am, pp102-107;
[2260] Brian Norton, 26 November 2009, am, pp102-104;
[2261] Brian Norton, 26 November 2009, am, pp103-104;
[2262] Brian Norton, 26 November 2009, am, p103;
[2263] Brian Norton, 26 November 2009, am, pp107-109;
[2264] Brian Norton, 26 November 2009, am, p108;
[2265] Brian Norton, 26 November 2009, am, pp108-109; 114-115;
[2266] Brian Norton, 26 November 2009, am, pp110-115;
[2267] Brian Norton, 26 November 2009, pm, pp11-12;
[2268] Yvonne Carlyle, 27 November 2009, am, p33;
[2269] Yvonne Carlyle, 27 November 2009, am, p40;
[2270] Yvonne Carlyle, 27 November 2009, am, pp43-44;
[2271] Yvonne Carlyle, 27 November 2009, am, p38;
[2272] Yvonne Carlyle, 27 November 2009, am, p40-45;
[2273] Yvonne Carlyle, 27 November 2009, am, p58;
[2274] Yvonne Carlyle, 27 November 2009, am, p58;
[2275] Yvonne Carlyle, 27 November 2009, am, pp59-60;
[2276] Yvonne Carlyle, 27 November 2009, am, pp57-58;
[2277] Yvonne Carlyle, 27 November 2009, pp126-131;
[2278] Yvonne Carlyle, 27 November 2009, am, pp128-130;
[2279] Yvonne Carlyle, 27 November 2009, am, pp130-131;
[2280] Yvonne Carlyle, 27 November 2009, am, pp60-62;
[2281] Yvonne Carlyle, 27 November 2009, am, pp64-66;
[2282] Yvonne Carlyle, 27 November 2009, am, p66;
[2283] David Thurley, 18 November 2009, am, p3, confirming the position of the sluice room directly opposite cupboards A1 and A2;
[2284] Yvonne Carlyle, 27 November 2009, am, pp67-70, 106-111;
[2285] Yvonne Carlyle, 27 November 2009, am, p70;
[2286] Yvonne Carlyle, 27 November 2009, am, pp111-117;
[2287] Brian Norton, 26 November 2009, am, pp115-117;
[2288] Irene Richmond, 1 December 2009, am, pp72-75;
[2289] Yvonne Carlyle, 27 November 2009, am, pp131-133;
[2290] Irene Richmond, 1 December 2009, am, p60;
[2291] Irene Richmond, 1 December 2009, am, pp135-137;
[2292] Irene Richmond, 1 December 2009, am, pp137-138;
[2293] Irene Richmond, 1 December 2009, am, p137;
[2294] Irene Richmond, 1 December 2009, am, pp138-139;
[2295] Irene Richmond, 1 December 2009, am, pp142-143;
[2296] Irene Richmond, 1 December 2009, am, pp63-64;
[2297] Irene Richmond, 1 December 2009, am, pp143-144;
[2298] Irene Richmond, 1 December 2009, am, p68;
[2299] Irene Richmond, 1 December 2009, am, pp70-71;
[2300] Irene Richmond, 1 December 2009, am, pp73-76;
[2301] Irene Richmond, 1 December 2009, am, pp76-78;
[2302] Irene Richmond, 1 December 2009, am, pp142-143;
[2303] Isobel Queen, 2 December 2009, am, p71;
[2304] Isobel Queen, 2 December 2009, am, p89;
[2305] Isobel Queen, 2 December 2009, am, p88
[2306] Isobel Caskie, 16 November 2009, pm, p40
[2307] Isobel Queen, 2 December 2009, am, pp104-107;
[2308] Isobel Queen, 2 December 2009, am, pp107-109;
[2309] Isobel Queen, 2 December 2009, am, p109;
[2310] Isobel Queen, 2 December 2009, pm, p75;
[2311] Martin Shipp, 13 April 2010, am, p106; 14 April 2010, pm, pp62-67;
[2312] Brian Norton, 26 November 2009, am, pp165-167; Yvonne Carlyle, 27 November 2009, am, pp135-137; Irene Richmond, 1 December 2009, pm, pp6-8; Isobel Queen, 2 December 2009, pm, pp44-46;
[2313] Yvonne Carlyle, 27 November 2009, am, pp70, 118-119; Irene Richmond, 1 December 2009, am, pp76-78; Isobel Queen, 2 December 2009, am, p109;
[2314] See Brian Norton, 26 November 2009, am, pp115-117;
[2315] Yvonne Carlyle, 27 November 2009, am, p107;
[2316] Brian Norton, 26 November 2009, am, p78;
[2317] Yvonne Carlyle, 27 November 2009, pm, p9;
[2318] Irene Richmond, 1 December 2009, am, p51;
[2319] Brian Norton, 26 November 2009, am, pp78-79;
[2320] Yvonne Carlyle, 27 November 2009, am, pp32-33;
[2321] Irene Richmond, 1 December 2009, am, p51;
[2322] Brian Norton, 26 November 2009, am, p82-3; Yvonne Carlyle, 27 November 2009, pm, pp10-11;
[2323] Brian Norton, 26 November 2009, am, pp81-82, 90; Yvonne Carlyle, 27 November 2009, pm, pp9-10;
[2324] Brian Norton, 26 November, am, pp92-100;
[2325] Brian Norton, 26 November 2009, am, pp81-83;
[2326] Brian Norton, 26 November 2009, am, p88;
[2327] Brian Norton, 26 November 2009, am, p102;
[2328] Photograph 881R;
[2329] Brian Norton, 26 November 2009, am, pp90-91;
[2330] Pages 85-89, 98-100, Morning Session, Thursday 26 November 2009;
[2331] Yvonne Carlyle, 27 November 2009, pm, p11;
[2332] Pages 11-12, Afternoon Session, Friday 27 November 2009;
[2333] Page 13, Afternoon Session, Friday 27 November 2009;
[2334] Isobel Queen, 2 December 2009, am, pp128-129;
[2335] Irene Richmond, 1 December 2009, am, pp53-54;
[2336] See para. 138 below;
[2337] Irene Richmond, 1 December 2009, am, pp143-144;
[2338] Brian Norton, 26 November 2009, am, pp117-118;
[2339] Brian Norton, 26 November 2009, am, pp118-120;
[2340] Brian Norton, 26 November 2009, am, pp120-122;
[2341] Brian Norton, 26 November 2009, am, p122;
[2342] Brian Norton, 26 November 2009, am, pp122-123;
[2343] Brian Norton, 26 November 2009, am, pp125-130;
[2344] Brian Norton, 26 November 2009, am, p131;
[2345] Brian Norton, 26 November 2009, pm, pp51-52;
[2346] Brian Norton, 26 November 2009, am, p129;
[2347] Brian Norton, 26 November 2009, am, pp130-139;
[2348] Brian Norton, 26 November 2009, am, pp139-140;
[2349] Brian Norton, 26 November 2009, am, pp139-141;
[2350] Yvonne Carlyle, 27 November 2009, am, p119;
[2351] Yvonne Carlyle, 27 November 2009, am, p71;
[2352] Yvonne Carlyle, 27 November 2009, am, p119-120;
[2353] Yvonne Carlyle, 27 November, am, pp71-72;
[2354] Yvonne Carlyle, 27 November 2009, am, pp72-74
[2355] Yvonne Carlyle, 27 November 2009, am, p123;
[2356] Yvonne Carlyle, 27 November 2009, pp75-80;
[2357] Yvonne Carlyle, 27 November 2009, am, pp82-85;
[2358] Yvonne Carlyle, 27 November 2009, am, pp85-87, 123-125;
[2359] Yvonne Carlyle, 27 November 2009, am, pp124-125;
[2360] Yvonne Carlyle, 27 November 2009, am, pp88-89;
[2361] Yvonne Carlyle, 27 November 2009, am, pp90, 125;
[2362] Yvonne Carlyle, 27 November 2009, am, pp90-91, 125;
[2363] Yvonne Carlyle, 27 November 2009, am, pp91-92, 125-126;
[2364] Irene Richmond, 1 December 2009, am, pp68, 77, 98;
[2365] Irene Richmond, 1 December 2009, am, pp77-78;
[2366] Irene Richmond, 1 December 2009, am, p81; Isobel Queen, 2 December 2009, am, pp111-112;
[2367]Isobel Queen, 2 December 2009, am, pp123-124;
[2368] Irene Richmond, 1 December 2009, am, pp 87-90
[2369] Irene Richmond, 1 December 2009, am p100;
[2370] Irene Richmond, 1 December 2009, am, pp87-96;
[2371] Irene Richmond, 1 December 2009, am, pp94-102;
[2372] Irene Richmond, 1 December 2009, am, pp103-104;
[2373] Irene Richmond, 1 December 2009, am, p104;
[2374] Irene Richmond, 1 December 2009, am, pp105-106; 108-109;
[2375] Irene Richmond, 1 December 2009, am, pp106-110;
[2376] Irene Richmond, 1 December 2009, am, pp114-119;
[2377] Irene Richmond, 1 December 2009, am, p119;
[2378] Irene Richmond, 1 December 2009, am, pp121-125;
[2379] Irene Richmond, 1 December 2009, am, pp123-124;
[2380] Irene Richmond, 1 December 2009, am, pp124-125;
[2381] Irene Richmond, 1 December 2009, am, p125;
[2382] Isobel Queen, 2 December 2009, am, p123;
[2383] Isobel Queen, 2 December 2009, am, pp123-124;
[2384] Isobel Queen, 2 December 2009, am, pp110-112;
[2385] Isobel Queen, 2 December 2009, am, pp125-126;
[2386] Isobel Queen, 2 December 2009, am, pp120-122, 125;
[2387] Isobel Queen, 2 December 2009, am, pp123-125;
[2388] Isobel Queen, 2 December 2009, am, pp115-117;
[2389] Isobel Queen, 2 December 2009, am, pp127-128;
[2390] Isobel Queen, 2 December 2009, am, pp117-118;
[2391] Yvonne Carlyle, 27 November 2010, am, p120;
[2392] Steven Campbell, 8 January 2010, am, pp25-26;
[2393] Isobel Queen, 2 December 2010, pm, pp83-87;
[2394] Brian Norton, 26 November 2009, am, p125;
[2395] Isobel Queen, 2 December 2009, am, pp128-129;
[2396] Isobel Queen, 2 December 2009, am, pp117-118;
[2397] Isobel Queen, 2 December 2009, am, p129
[2398] Isobel Queen, 2 December 2009, am, pp119-120;
[2399] Isobel Queen, 2 December 2009, pm, p10;
[2400] Isobel Queen, 2 December 2009, pm, pp14-15;
[2401] Isobel Queen, 2 December 2009, pm, pp17-18;
[2402] Irene Richmond, 1 December 2009, pp120-121;
[2403] Page 16, Afternoon Session, Wednesday 2 December 2009;
[2404] Isobel Queen, 2 December 2009, pm, pp18-22;
[2405] Isobel Queen, 2 December 2009, pm, p23;
[2406] Pages 126-127, Morning Session, Wednesday 2nd December 2009;
[2407] Joint Minute, paragraph 220;
[2408] Pages 132-133, Morning Session, Wednesday 21 April 2010;
[2409] Pages 150-151, Morning Session, Wednesday 21 April 2010;
[2410] Pages 1-2, Afternoon Session, Wednesday 21 April 2010;
[2411] Brian Norton, 26 November 2009, pm, p55; see also Mr Gray's commentary in the report 1140, section 2;
[2412] Isobel Queen, 2 December 2009, pm, pp45-46;
[2413] Brian Norton, 26 November 2009, am, pp166-167;
[2414] Yvonne Carlyle, 27 November 2009, am, p142;
[2415] Isobel Queen, 2 December 2009, pm, pp47-48; Brian Norton, 26 November 2009, am, p172;
[2416] Brian Norton, 26 November 2009, am, pp172-173; Yvonne Carlyle, 27 November 2009, p145; Isobel Queen, 2 December 2009, pm, pp49-50;
[2417] Brian Norton, 26 November 2009, am, pp173-174; Yvonne Carlyle, 27 November 2009, p146; Isobel Queen, 2 December 2009, pm, p50;
[2418] Yvonne Carlyle, 27 November 2009, pp75-80;
[2419] Brian Norton, 26 November 2009, am, p175; Yvonne Carlyle, 27 November 2009, p148-149; Isobel Queen, 2 December 2009, pm, pp53-54;
[2420] Brian Norton, 26 November 2009, am, p176; Yvonne Carlyle, 27 November 2009, p149-150; Irene Richmond, 1 December 2009, pm, p14; Isobel Queen, 2 December 2009, pm, pp53-55;
[2421] Yvonne Carlyle, 27 November 2009, am, p152;
[2422] Brian Norton, 26 November 2009, am, pp177-178; Yvonne Carlyle, 27 November 2009, p152-153; Irene Richmond, 1 December 2009, pm, p16; Isobel Queen, 2 December 2009, pm, pp56-57;
[2423] Brian Norton, 26 November 2009, am, p179;
[2424] Irene Richmond, 1 December 2009, pm, p17;
[2425] Isobel Queen, 2 December 2009, pm, pp57-58;
[2426] Irene Richmond, 1 December 2009, pm, pp18-19;
[2427] Pages 23-31, Morning Session, Friday 4 December 2009; Production 928, Turn-Out Slip; ( See also the evidence of Irene Richmond and Isobel Queen under reference to the latter seen returning to the Rose Lounge after making the call, timed on CCTV AT 0542:47 hours (or 0438:28) - the latter timings are significant in respect that they confirm that, broadly, the timings contained in the CCTV footage (after correction) and the timings contained in the Fire Brigade Incident Log are mutually consistent)
[2428] Joint Minute, part II, paragraph 83;
[2429] Pages 29-30, Afternoon Session, Wednesday 2 December 2009;
[2430] Page 29, Afternoon Session, Wednesday 2 December 2009;
[2431] Isobel Queen, 2 December 2009, pm, pp60-61; Irene Richmond, 1 December 2009, pm, pp20-22;
[2432] Isobel Queen, 2 December 2009, pm, pp32, 63-64
[2433] Isobel Queen, 2 December 2009, pm, p32;
[2434] Irene Richmond, 1 December, am, p124;
[2435] Isobel Queen, 2 December 2009, pm, pp32-34;
[2436] Isobel Queen, 2 December 2009, pm, pp35-26
[2437] Irene Richmond, 1 December 2009, pm, p27; Isobel Queen, 2 December 2009, pm, pp65-66; David Buick, 7 December 2009, am, pp46-47;
[2438] Brian Norton, 26 November 2009, am, p139;
[2439] Yvonne Carlyle, 27 November 2009, am, p97;
[2440] Brian Norton, 26 November 2009, am, pp141-142;
[2441] Brian Norton, 26 November 2009, am, pp142-144;
[2442] Brian Norton, 26 November 2009, am, p143;
[2443] Yvonne Carlyle, 27 November 2009, am, pp98-99;
[2444] Brian Norton, 26 November 2009, am, pp143-144; Yvonne Carlyle, 27 November 2009, am, pp97-98;
[2445] Brian Norton, 26 November, am, pp143-144;
[2446] Brian Norton, 26 November 2009, am, p144;
[2447] Brian Norton, 26 November 2009, am, p145; Yvonne Carlyle, 27 November 2009, am, p100
[2448] Brian Norton, 26 November 2009, am, pp145-147, 150; Yvonne Carlyle, 27 November 2009, am, pp101-105;
[2449] Brian Norton, 26 November 2009, am, p151; Yvonne Carlyle, 27 November 2009, am, p106;
[2450] Yvonne Carlyle, 27 November 2009, pm, p65;
[2451]Yvonne Carlyle, 27 November 2009, pm, pp65-66;
[2452] Brian Norton, 26 November 2009, am, p154
[2453] Brian Norton, 26 November 2009, am, p148;
[2454] Brian Norton, 26 November 2009, am, pp155-157
[2455] Production, 270, p4; Victoria Neill, 4 December 2010, am, pp92-93, 106-16;
[2456] Evidence of Joyce Wood, pages 23-31, Morning Session, Friday 4 December 2009; Production 928, Turn-Out Slip;
[2457] Victoria Neill, 4 December 2009, am, pp26, 97;
[2458] Victoria Neill, 4 December 2009, am, p97; Production 270, Incident Resource History;
[2459] David Buick, 4 December 2009, pm, pp77-78;
[2460] David Buick, 4 December 2009, pm, pp79;
[2461] Steven Campbell, 7 January 2010, pm, p65; David Buick, 4 December 2009, pm, p87; Paul Caldwell, 7 December 2009, pm, p107; Colin Mackie, 10 December 2009, pm, p38; James Clark, 8 December 2009, pm, p62; 9 December 2009, pm, pp9-10;
[2462] James Clark, 9 December 2009, pm, p10;
[2463] Production 270, Incident Resource History; pages 106-109, Morning Session, Friday 4 December 2009; Production 928, Turn-Out slip (for first Hamilton appliance E011);
[2464] Evidence of Sir Graham Meldrum; page 116 et seq., Morning Session, Tuesday 3 August 2010; Production 2080;
[2465] Production 270, Incident Resource History;
[2466] Production 206, Full Incident Log, page 6, ninth entry timed at 0440 hours;
[2467] Sir Graham Meldrum, 3 August 2010, am, pp115-118
[2468] Pages 47-48, Afternoon Session, Thursday 7 January 2010; Production 928, Turn-Out slip
[2469] Pages 53-54 Afternoon Session, Thursday 7 January 2010
[2470] Page 54-64, Afternoon Session, Thursday 7 January 2010, and the police statement given by Station Officer Campbell on 16th March 2004;
[2471] David Buick: Pages 91-92, Afternoon Session, Friday 4 December 2009; Paul Caldwell: Page 83, Afternoon Session, Monday 7 December 2009; James Clark: Page 62, Afternoon Session, Tuesday 8 December 2009; Colin Mackie: Pages 26-28, Afternoon Session, Thursday 10 September 2009; and see also submissions at chapter 38(5), paragraph 15;
[2472] See chapter 38(5), para. 15;
[2473] See eg. Sir Graham Meldrum, 3 August 2010, pm, pp24-25, in relation to the use of available BA wearers to verify conditions in corridor 3;
[2474] See chapter 38(5), paras. 7-10;
[2475] Paul Caldwell, 7 December 2009, pm, p116;
[2476] Pages 91-95, Afternoon Session, Wednesday 9 December 2009;
[2477] Evidence of Victoria Neill, Pages 106-109, Morning Session, Friday 4 December 2009; Production 270, Incident Resource History;
[2478] Steven Campbell, 7 January 2010, pm, pp88-89;
[2479] Steven Campbell, 7 January 2010, pm, pp83-87;
[2480] Steven Campbell, 7 January 2010, pm, p84;
[2481] Page 98-106, Afternoon Session, Friday 4 December 2010; Page 6, Morning Session, Friday 8 January 2010;
[2482] Page 76, Afternoon Session, Tuesday 8 December 2009;
[2483] Page 116, Afternoon Session, Monday 7 December 2009;
[2484] Archibald McDiarmid, 10 December 2009, am, pp8-10;
[2485] Production 270, Incident Resource History;
[2486] Pages 101-106, Afternoon Session, Friday 4 December 2009;
[2487] Colin Mackie, 10 December 2009, pm, pp31-32;
[2488] Pages 9-11, Morning Session, Friday 8 January 2010;
[2489] Pages 13-14, Morning Session, Friday 8 January 2010;
[2490] Page 108, Afternoon Session, Friday 4 December 2009;
[2491] Page 36, Afternoon Session, Wednesday 2nd December 2009;
[2492] Page 108, Afternoon Session, Friday 4 December 2009
[2493] Page 110, Afternoon Session, Friday 4 December 2009
[2494] Lines 1 - 7, Page 4, Morning Session, Monday 7 December 2009
[2495] Page 22, Morning Session, Monday 7 December 2009; see also evidence of Station Officer Campbell, Page 22, Morning Session, Friday 8 January 2010;
[2496] David Buick, 7 December 2009, am, p5;
[2497] Irene Richmond, 1 December 2009, am, p131;
[2498] See Page 7, Morning Session, Monday 7 December 2009
[2499] David Buick, 7 December 2009, am, p8;
[2500] David Buick, 7 December 2009, am, p9;
[2501] Lines 17 - 18, Page 12, Morning Session, Monday 7 December 2009
[2502] Lines 19 - 23, Page 12, Morning Session, Monday 7 December 2009
[2503] Lines 8 - 12, Page 13, Morning Session, Monday 7 December 2009
[2504] David Buick, 7 December 2009, am, pp14, 19
[2505] David Buick, 7 December 2009, pm, pp14-16;
[2506] Pages 17 - 18, Morning Session, Monday 7 December 2009
[2507] Sir Graham Meldrum, 6 August 2010, pm, pp38-40;
[2508] Label 1506, CCTV footage, 0549:29 (0444:10) hours; David Buick, 7 December 2009, am, pp47-49;
[2509] Pages 22 - 23, Morning Session, Monday 7 December 2009
[2510] Page 65, Afternoon Session, Friday 8 January 2010; see also Irene Richmond. 1 December 2009, pm, p29; Isobel Queen, 2 December 2009, am, p66;
[2511] Page 19, Morning Session, Friday 8 January 2010;
[2512] Pages 21-22 and 112, Morning Session, Friday 8 January 2010;
[2513] Pages 33-35, Morning Session, Friday 8 January 2010;
[2514] Page 24, Morning Session, Friday 8 January 2010; Label 1506, CCTV footage, at 0550:18 (0445:59) hours; Pages 61-66, Afternoon Session, Friday 8 January 2010;
[2515] Page 25, Morning Session, Friday 8 January 2010;
[2516] Steven Campbell, 8 January 2010, am, p24;
[2517] Steven Campbell, Statement, 3rd February 2004; pages 33-35, Morning Session, Friday 8 January 2010;
[2518] Pages 25-26, Morning Session, Friday 8 January 2010;
[2519] Page 27, Morning Session, Friday 8 January 2010;
[2520] Steven Campbell, 8 January 2010, am, pp24-25;
[2521] Steven Campbell, 11 January 2010, am, p72;
[2522] Pages 122 and 125, respectively, Morning Session, Wednesday 2 December 2009;
[2523] Page 119, Morning Session, Friday 27 November 2009;
[2524] Page 81, Morning Session, Tuesday 1 December 2009;
[2525] Pages 53-54, Afternoon Session, Tuesday 22 December 2009;
[2526] Pages 2-4, Afternoon Session, Friday 8 January 2010
[2527] Pages 24-25 and 63, Morning Session, Friday 8 January 2010;
[2528] See chapter 44(7), and Sir Graham Meldrum, 6 August 2010, am, pp71-72;
[2529] Steven Campbell, 8 January 2010, pm, pp3-4;
[2530] Label 1506, CCTV footage, 0550:45 (0446:26) hours;
[2531] Pages 40-43, Morning Session, Friday 8 January 2010;
[2532] Pages 50-51, Morning Session, Friday 8 January 2010
[2533] Steven Campbell, 8 January 2010, am, p54;
[2534] Lines 15 - 19, Page 24, Morning Session, Monday 7 December 2009;
[2535] Pages 68-71, Morning Session, Friday 8 January 2010;
[2536] Sir Graham Meldrum, 6 August 2010, am, pp71-72;
[2537] Production 180; see chapter 44(7); "Fire Alarm Panel", paras. 2-7;
[2538] Page 107, Morning Session, Friday 8 January 2010;
[2539] See para. 171 above;
[2540] Sir Graham Meldrum, 3 August 2010, am, pp166-167;
[2541] See para. 171;
[2542] Steven Campbell, 8 January 2010, am, pp3-4;
[2543] Sir Graham Meldrum, 6 August 2010, am, pp71-72;
[2544] Brian Sweeney, 13 July 2010, am, pp45-46;
[2545] Production 206, Full Incident Log; Page 128 et seq., Morning Session, Friday 4 December 2009 (Victoria Neill); Pages 115-116, Morning Session, Friday 8 January 2010 (S/O Campbell);
[2546] Page 33, Morning Session, Monday 7 December 2009; Pages 78-80, Afternoon Session, Tuesday 8 December 2009;
[2547] Pages 74 - 77, Morning Session, Friday 8 January 2010
[2548] See chapter 44(7), "Assumptions about the integrity of the upper floor";
[2549] Ronald Downie, 15 December 2009, pm, pp14-17; 29-33; Production 509, p4;
[2550] Pages 99-100, Morning Session, Friday 8 January 2010;
[2551] Pages 100-105, Morning Session, Friday 8 January 2010;
[2552] Pages 99-100, Morning Session, Friday 8 January 2010;
[2553] Pages 100-101, Morning Session, Friday 8 January 2010;
[2554] Pages 106-107, Morning Session, Friday 8 January 2010;
[2555] Pages 87-88, Morning Session, Friday 8 January 2010;
[2556] Pages 98-99, Morning Session, Friday 8 January 2010;
[2557] Page 87, Morning Session, Friday 8 January 2010;
[2558] Pages 109-110, Morning Session, Friday 8 January 2010;
[2559] Pages 136-137, Morning Session, Friday 8 January 2010;
[2560] Pages 78-79, Afternoon Session, Tuesday 8 December 2009;
[2561] David Buick, 7 December 2009, am, pp58-59;
[2562] Page 85, Afternoon Session, Tuesday 8 December 2009;
[2563] Pages 87-88, Afternoon Session, Tuesday 8 December 2009;
[2564]Steven Campbell, 8 December 2009, pm, pp94-95; 9 December 2009, am, pp3-4; pm, p18;;
[2565] James Clark, 8 December 2009, pm, pp94-95;
[2566] Production 564, Bodyguard Datalog Report for BA set 344; Joint Minute, paragraph 126; and see, generally, the evidence of James Clark, Pages 41-50, Morning Session, Wednesday 9 December 2009, for discussion of the timings in the Report for BA set 344;
[2567] Pages 3-4, Morning Session, Wednesday 9 December 2009;
[2568] Page 4, Morning Session, Wednesday 9 December 2009;
[2569] Page 148, Morning Session, Wednesday 9 December 2009;
[2570] Page 11, Morning Session, Wednesday 9 December 2009;
[2571] Page 12, Morning Session, Wednesday 9 December 2009;
[2572] Pages 16-17, Morning Session, Wednesday 9 December 2009;
[2573] Page 20, Morning Session, Wednesday 9 December 2009;
[2574] Cf. Production 1745, plan of the lower ground floor;
[2575] Pages 20-21, Morning Session, Wednesday, 9 December 2009;
[2576] Page 25, Morning Session, Wednesday 9 December 2009;
[2577] Pages 25-26, Morning Session, Wednesday 9 December 2009;
[2578] Pages 26-29, Morning Session, Wednesday 9 December 2009;
[2579] Pages 70-73, Morning Session, Wednesday 9 December 2009
[2580] Steven Campbell, 8 January 2010, pm, p7;
[2581] Colin Gray, 11 December 2009, am, pp163-164;
[2582] Pages 38-40, Morning Session, Wednesday 9 December 2009;
[2583] Pages 40-41, Morning Session, Wednesday 9 December 2009;
[2584] This also provides a cross check for the approximate time of arrival of E011, whose driver assisted in opening the top gate and therefore must have arrived at or shortly after the time when Mr Clark and Mr Mackie resumed their search and rescue;
[2585] Pages 41-50, Morning Session, Wednesday 9 December 2009;
[2586] Page 55, Morning Session, Wednesday 9 December 2009;
[2587] Pages 57-58, Morning Session, Wednesday 9 December 2009;
[2588] Pages 58-59, Morning Session, Wednesday 9 December 2009;
[2589] Page 64, Morning Session, Wednesday 9 December 2009;
[2590] Page 70, Morning Session, Wednesday 9 December 2009;
[2591] Pages 73-74, Morning Session, Wednesday 9 December 2009;
[2592] Page 75, Morning Session, Wednesday 9 December 2009;
[2593] Page 76, Morning Session, Wednesday 9 December 2009;
[2594] Pages 66-67, Afternoon Session, Thursday 10 December 2009;
[2595] Pages 79-83, Morning Session, Wednesday 9 December 2009; Pages 68-69, Afternoon Session, Thursday 10 December 2009;
[2596] Page 68-69; 95, Afternoon Session, Thursday 10 December 2009;
[2597] David Robertson, 9 February 2010, am, pp102-103;
[2598] Brian Norton, 26 November 2009, am, pp143-144;
[2599] Pages 83- 87, Morning Session, Wednesday 9 December 2009;
[2600] Pages 89-90, Morning Session, Wednesday 9 December 2009;
[2601] See photograph 887J; Page 88, Morning Session, Wednesday 9 December 2009;
[2602] Page 144, Morning Session, Monday 7 December 2009; Pages 90-91, Morning Session, Wednesday 9 December 2009;
[2603] Pages 92-93, Morning Session, Wednesday 9 December 2009;
[2604] Pages 94-95, Afternoon Session, Thursday 10 December 2009;
[2605] See note 91, supra.; cf. Production 2053, Revised report by Professor David Purser, Appendix B, page 63;
[2606] Pages 94-100, Morning Session, Wednesday 9 December 2009
[2607] Pages 100-101, Morning Session, Wednesday 9 December 2009;
[2608] See generally James Clark's evidence, Pages 104-115; 126-127, Morning Session, Wednesday 9 December 2009; Colin Mackie's evidence; Pages 85-92, Afternoon Session, Thursday 10 December 2009; Colin Gray's evidence, Pages 174-180, Morning Session, Friday 11 December 2009; pages 1-3, Afternoon Session, Friday 11 December 2009; Gordon Hector's evidence, Pages 28-38, Morning Session, 14 December 2009;
[2609] Pages 125-126, Morning Session, Wednesday 9 December 2009;
[2610] Pages 126-127, Morning Session, Tuesday 8 December 2009;
[2611] Page 41-2, Morning Session, Monday 7 December 2009; Pages 88-91, Afternoon Session, Wednesday 9 December 2009';
[2612] Pages 63-64, Morning Session, Monday 7 December 2009; Pages 127-128, Morning Session, Tuesday 8 December 2009;
[2613] Page 45, Morning Session, Monday 7 December 2009; Page 132 et seq., Morning Session, Tuesday 8 December 2009;
[2614] Pages 138-139, Morning Session, Friday 8 January 2010
[2615] Pages 140-145, Morning Session, Friday 8 January 2010;
[2616] Pages 76-80, Morning Session, Monday 7 December 2010;
[2617] Pages 84-86, Morning Session, Monday 14 December 2009;
[2618] Pages 154-155, Morning Session, Tuesday 8 December 2009;
[2619] Pages 93-95, Morning Session, Monday 14 December 2009;
[2620] Evidence of David Buick, pages 75 and 80-81, Morning Session, Monday 7 December 2009; Evidence of David Ferguson,
[2621] David Buick, 7 December 2009, am, pp82-83;
[2622] Page 86, Morning Session, Monday 7 December 2009;
[2623] Pages 88-89, Morning Session, Monday 7 December 2009;
[2624] Crown label 1506, spoken to by Mr Buick, Pages 113-130, Morning Session, Monday 7 December 2009; and by Mr Ferguson, Pages 11-17, Afternoon Session, Tuesday 8 December 2009;
[2625] Pages 106-7, Morning Session, Monday 7 December 2009;
[2626] Pages 159-160, Morning Session, Tuesday 8 December 2009;
[2627] Pages 92-95, Morning Session, Monday 7 December 2009
[2628] Pages 163-166, Morning Session, Tuesday 8 December 2009;
[2629] John Devine, 15 December 2009, am, p91;
[2630] Pages 119-120, Morning Session, Monday 7 December 2009; Pages 13-14, Afternoon Session, Tuesday 8 December 2009;
[2631] Pages 14-16, Morning Session, Tuesday 8 December 2009;
[2632] cf. Production 2053, Revised Report by Professor David Purser, Appendix B, page 62;
[2633] Pages 5-6, Afternoon Session, Friday 8 January 2010; Production 206, page 7;
[2634] Page 17, Afternoon Session, Friday 8 January 2010;
[2635] Pages 19-20, Afternoon Session, Friday 8 January 2010;
[2636] Pages 21-22, Afternoon Session, Friday 8 January 2010;
[2637] Page 39, Afternoon Session, Friday 8 January 2010;
[2638] Page 21, Afternoon Session, Friday 8 January 2010;
[2639] Pages 39-40, Afternoon Session, Friday 8 January 2010;
[2640] Page 24, Afternoon Session, Friday 8 January 2010;
[2641] Page 26, Afternoon Session, Friday 8 January 2010;
[2642] Pages 41-42, Morning Session, Tuesday 12 January 2010;
[2643] Page 32, Afternoon Session, Friday 8 January 2010;
[2644] Pages 17-18, Afternoon Session, Tuesday 8 December 2009;
[2645] Pages 132, 135, Morning Session, Monday 7 December 2009;
[2646] Pages 8-9, Afternoon Session, Tuesday 8 December 2009;
[2647] Page 133, Morning Session, Monday 7 December 2009; Page 19, Afternoon Session, Tuesday 8 December 2009;
[2648] Page 137, Morning Session, Monday 7 December 2009;
[2649] Page 136, Morning Session, Monday 7 December 2009;
[2650] Page 133, 137-138, Morning Session, Monday 7 December 2009; Pages 18-19, Afternoon Session, Tuesday 8 December 2009;
[2651] Page 19, Afternoon Session, Tuesday 8 December 2009;
[2652] Page140, Morning Session, Monday 7 December 2009; Pages 19-21, Afternoon Session, Tuesday 8 December 2009; Pages 118-119, Morning Session, Monday 14 December 2009;
[2653] Page 140, Morning Session, Tuesday 7 December 2009; Page 20, Afternoon Session, Tuesday 8 December 2009;
[2654] Pages 23-26, Afternoon Session, Tuesday 8 December 2009;
[2655] Pages 140-141, Morning Session, Monday 7 December 2009;
[2656] Pages 12-13, Afternoon Session, Monday 7 December 2009; Pages 12-14, Afternoon Session, Monday 7 December 2009;
[2657] Pages 126-128, Morning Session, Monday 14 December 2009;
[2658] Page 144-145, Morning Session, Monday 7 December 2009;
[2659] Page 146, Morning Session, Monday 7 December 2009;
[2660] Page 145, 148, Morning Session, Monday 7 December 2009;
[2661] Production 887F1, Pages 149-150, Morning Session, Monday 7 December 2009;
[2662] Production 887 J1, Pages 152-153, Morning Session, Monday 7 December 2009;
[2663] Page 144, Morning Session, Monday 7 December 2009;
[2664] Page 153, Morning Session, Monday 7 December 2009;
[2665] Pages 2-4, Afternoon Session, Monday 7 December 2009; Label 1506, CCTV, 0623:16 (0518:57) hours; Page 162, Morning Session, Monday 7 December 2009;
[2666] Pages 154-155, Morning Session, Monday 7 December 2009;
[2667] Pages 5-10, Afternoon Session, Monday 7 December 2009;
[2668] Pages 11-12, Afternoon Session, Monday 7 December 2009
[2669] Page 26, Afternoon Session, Tuesday 8 December 2009;
[2670] Pages 26-32, Afternoon Session, Tuesday 8 December 2009; Evidence of Jamie Buchan, Pages 118-126, Morning Session, Monday 14 December 2009;
[2671] Pages 59-61, Morning Session, Friday 11 December 2009;
[2672] Pages 11-12, Afternoon Session, Monday 7 December 2009;
[2673] Pages 21-22, Afternoon Session, Monday 7 December 2009;
[2674] Page 18, Afternoon Session, Monday 7 December 2009;
[2675] Pages 22-25, Afternoon Session, Monday 7 December 2009;
[2676] Production 206, Full Incident Log, page 11; page 50, Afternoon Session, Friday 8 January 2010;
[2677] Page 50, Afternoon Session, Friday 8 January 2010;
[2678] Pages 58, 60, Afternoon Session, Friday 8 January 2010;
[2679] Page 58, Afternoon Session, Friday 8 January 2010;
[2680] Page 65, Afternoon Session, Friday 8 January 2010;
[2681] Pages 53-54, Afternoon Session, Friday 8 January 2010; Pages 70-71, Morning Session, Monday 11 January 2010;
[2682] Pages 58-62, Afternoon Session, Friday 8 January 2010; Pages 40-46, Morning Session, Tuesday 12th January 2010;
[2683] Victoria Neill, 4 December 2009, am, pp110-114; Production 270;
[2684] Alastair Ross, 14 December 2009, am, p142; Gordon Hector, 14 December 2009, am, pp3-4; Alan Campbell, 11 December 2009, am, pp2-5; Brendan O'Dowd, 11 December 2009, pm, pp69-70; John Devine, 15 December 2009, am, pp80-82;
[2685] Victoria Neill, 4 December 2009, am, pp112-114;
[2686] Gordon Hector, 14 December 2009, am, p6;
[2687] Production 270; Victoria Neill, 4 December 2009, am, pp111-112;
[2688] Victoria Neill, 4 December 2009, am, p145; Production 206, Full Incident Log, page 7, where the entry for 0456 hours carries with it an instruction "Enter Rosebank Avenue";
[2689] Gordon Hector, 14 December 2009, am, p7;
[2690] Alastair Ross, 14 December 2009, am, pp151-154; Gordon Hector, 14 December 2009, am, p9;
[2691] Gordon Hector, 14 December 2009, am, pp10-11;
[2692] Alastair Ross, 14 December 2009, pm, pp4-6;
[2693] Alastair Ross, 14 December 2009, pm, pp6-9;
[2694] Alastair Ross, 14 December 2009, pm, p10;
[2695] Alastair Ross, 14 December 2009, pm, p11;
[2696] Alastair Ross, 14 December 2009, pm, pp12-13;
[2697] Alastair Ross, 14 December 2009, pm, pp13-14;
[2698] Alastair Ross, 14 December 2009, pm, pp12-13;
[2699] Alastair Ross, 14 December 2009, pm, pp12-15;
[2700] Alastair Ross, 14 December 2009, pm, pp23-25;
[2701] Alastair Ross, 14 December 2009, pm, pp19-24, 32-33;
[2702] Alastair Ross, 14 December 2009, pm, p31ff.;
[2703] Alastair Ross, 14 December 2009, pm, pp35-36;
[2704] Pages 2-4, Morning Session, Friday 11 December 2009;
[2705] Pages 17-20, Morning Session, Friday 11 December 2009;
[2706] Pages 28-29, Morning Session, Pages 72-74, Friday 11 December 2009;
[2707] Page 136, Morning Session, Friday 11 December 2009;
[2708] Label 1506, CCTV footage; Pages 24-25, Morning Session, Friday 11 December 2009;
[2709] Pages 32-33, 39-40, Morning Session, Friday 11 December 2009;
[2710] Pages 34-35, Morning Session, Pages 78-79, Afternoon Session, Friday 11 December 2009;
[2711] Page 38, Morning Session, Friday 11 December 2009;
[2712] Page 40, Morning Session, Friday 11 December 2009;
[2713] Page 42, Morning Session, Friday 11 December 2009;
[2714] Pages 44-45, Morning Session, Friday 11 December 2009;
[2715] Pages 41-43, Morning Session, Friday 11 December 2009; Production 341A, C
[2716] Page 45, Morning Session, Friday 11 December 2009;
[2717] Pages 49-50, Morning Session, Friday 11 December 2009; Pages 82-87, Afternoon Session, Friday 11 December 2009;
[2718] Pages 48-49, Morning Session, Friday 11 December 2009;
[2719] Pages 50-51, Morning Session, Friday 11 December 2009;
[2720] Page 55, Morning Session, Friday 11 December 2009;
[2721] Page 56, Morning Session, Friday 11 December 2009;
[2722] Page 55, Morning Session, Friday 11 December 2009; Page 87, Afternoon Session, Friday 11 December 2009;
[2723] Pages 88-94, Afternoon Session, Friday 11 December 2009;
[2724] Pages 59-62, Morning Session, Friday 11 December 2009;
[2725] Page 64, Morning Session, Friday 11 December 2009;
[2726] Pages 66-69, Morning Session, Friday 11 December 2009; Pages 98-99, Afternoon Session, Friday 11 December 2009;
[2727] Page 69, Morning Session, Friday 11 December;
[2728] Productions 354C and 353A refer; Pages 70-72, Morning Session, Page 100, Afternoon Session, Friday 11 December 2009;
[2729] Pages 73, Morning Session, Page 99-100, Afternoon Session, Friday 11 December 2009;
[2730] Pages 73-77, Morning Session, Page 100, Afternoon Session, Friday 11 December 2009;
[2731] Pages 73-77, Morning Session, Page 100, Afternoon Session, Friday 11 December 2009;
[2732] Pages 80-82, Morning Session, Friday 11 December 2009;
[2733] Page 104, Afternoon Session, Friday 11 December 2009;
[2734] Pages 155-158, Morning Session, Friday 11 December 2009;
[2735] Page 162, Morning Session, Friday 11 December 2009;
[2736] Pages 163-164, Morning Session, Friday 11 December 2009;
[2737] Page 165, Morning Session, Friday 11 December 2009;
[2738] Pages 169-172, Morning Session, Friday 11 December 2009;
[2739] Pages171-172, Morning Session, Friday 11 December 2009;
[2740] Page 173, Morning Session, Friday 11 December 2009;
[2741] Pages 59-61, Morning Session, Monday 11 January 2010 (Evidence of Steven Campbell);
[2742] Pages 174-180, Morning Session, Pages 1-3, Afternoon Session, Friday 11 December 2009; Page 38, Morning Session, Monday 14 December 2009;
[2743] Page 14, Afternoon Session, Friday 11 December 2009;
[2744] Pages 15-16, Afternoon Session, Friday 11 December 2009;
[2745] Page 15, Afternoon Session, Friday 11 December 2009; Pages 45-51, Morning Session, Monday 14 December 2009;
[2746] Page 48-50, Morning Session, Monday 14 December 2009;
[2747] Page 7, Afternoon Session, Friday 11 December 2009; Page 51, Morning Session, Monday 14 December 2009;
[2748] Colin Gray, 11 December 2009, pm, p13; Gordon Hector, 14 December 2009, am, p64;
[2749] Pages 9-12, Afternoon Session, Friday 11 December 2009;
[2750] See chapter 36, paras. 1.6-1.7; Agnes Crawford, 16 November 2009, pm, pp60, 61, 67;
[2751] Pages 17 - 22, Afternoon Session, Friday 11 December 2009; Pages 62-67, Morning Session, Monday 14 December 2009;
[2752] Gordon Hector, 14 December 2009, am, pp82-83;
[2753] Pages 66-68, Morning Session, Monday 14 December 2009;
[2754] James Clark, 8 December 2009, pm, pp94-95;
[2755] Pages 67-68, Morning Session, Monday 14 December 2009;
[2756] Pages 22-25, Afternoon Session, Friday 11 December 2009;
[2757] Pages 97-99, Morning Session, Tuesday 15 December 2009
[2758] cf. Production 2053, Revised Report by Professor David Purser, Appendix B, page 64;
[2759] Pages 32, 36-37, Afternoon Session, Friday 11 December 2009;
[2760] See also Mr Gray's evidence, Pages 38-39, Afternoon Session, Friday 11 December 2009;
[2761] Pages 22-25, Afternoon Session, Friday 11 December 2009; Pages 68-76, Morning Session, Monday 14 December 2009;
[2762] Pages 68-77, Morning Session, Monday 14 December 2009;
[2763] See paragraph [insert] supra.
[2764] Pages 22-25, Afternoon Session, Friday 11 December 2009;
[2765] Page 30, Afternoon Session, Friday 11 December 2009; Page 77, Morning Session, Monday 14 December 2009;
[2766] Colin Gray, 11 December 2009, pm, pp30-31
[2767] Colin Gray, 11 December 2009, pm, pp40-50; Gordon Hector, 14 December 2009, am, p80;
[2768] Alastair Ross, 14 December 2010, pm, p37;
[2769] Alastair Ross, 14 December 2010, pm, pp37-42;
[2770] Alastair Ross, 14 December 2010, pm, pp42-43;
[2771] Alastair Ross, 14 December 2010, pm, pp44-48;
[2772] Alastair Ross, 14 December 2010, pm, pp48-49;
[2773] Alastair Ross, 14 December 2010, pm, pp49-52; Production 206, p15;
[2774] Alastair Ross, 14 December 2010, pm, pp49-51; 58-59;
[2775] Alastair Ross, 14 December 2010, pm, pp58-61;
[2776] Alastair Ross, 14 December 2010, pm, pp61-64;
[2777] Alastair Ross, 14 December 2010, pm, pp54-55;
[2778] Steven Campbell, 11 January 2010, am, pp73-74;
[2779] Alastair Ross, 14 December 2010, pm, pp54-56;
[2780] Production 206, Page 15; Pages 3-7, Morning Session, Monday 11 January 2010;
[2781] Production 270, Incident Resource History; Production 206, Full Incident Log; Evidence of Victoria Neill, Pages 128 et seq., Morning Session, Friday 4 December 2009;
[2782] Pages 27-28, Morning Session, Monday 11 January 2010;
[2783] Pages 78-79, Morning Session, Monday 11 January 2010;
[2784] Paul Nelson, 15 December 2009, am, pp110-112;
[2785] Paul Nelson, 15 December 2009, am, pp119-120;
[2786] Paul Nelson, 15 December 2009, am, pp146-147;
[2787] Paul Nelson, 15 December 2009, am, pp123-126;
[2788] Alastair Ross, 14 December 2010, am, pp83-84;
[2789] Paul Nelson, 15 December 2010, am, pp137-137;
[2790] Paul Nelson, 15 December 2009, am, pp135-136;
[2791] Paul Nelson, 15 December 2010, am, p144;
[2792] Alastair Ross, 14 December 2010, am, p59;
[2793] Pages 61-70, Afternoon Session, Monday 14 December 2009;
[2794] Alastair Ross, 14 December 2010, am, pp78-81;
[2795] Alastair Ross, 14 December 2010, am, pp82-84;
[2796] Alastair Ross, 14 December 2010, am, pp85-87;
[2797] Alastair Ross, 14 December 2010, am, pp87-88;
[2798] Alastair Ross, 14 December 2010, am, pp88-89;
[2799] Ross French, 15 December 2010, am, p35;
[2800] Ross French, 15 December 2010, am, pp39-40;
[2801] Ross French, 15 December 2010, am, p47;
[2802] Ross French, 15 December 2010, am, pp48-49;
[2803] Ross French, 15 December 2010, am, pp54-57;
[2804] John Devine, 15 December 2010, am, p81
[2805] John Devine, 15 December 2010, am, p86;
[2806] John Devine, 15 December 2010, am, pp87-88;
[2807] Pages 77, 79-82, Morning Session, Thursday 10 December 2009;
[2808] Pages 100-103, Morning Session, Thursday 10 December 2009;
[2809] Page 38, Morning Session, Wednesday 16 December 2009;
[2810] Pages 45- 51, Morning Session, Wednesday 16 December 2009; Production 558, pages 15, 49 (manuscript); Joint Minute, part 1, paragraph 86;
[2811] Pages 51-54, Morning Session, Wednesday 16 December 2009;
[2812] Production 1721; Joint Minute, part 1, paragraph 88;
[2813] Pages 32-34, Morning Session, Wednesday 16 December 2009; the police statement adopted by Mr Grierson in that passage is relied on by Professor Purser in his revised report, appendix B, at page 65;
[2814] Pages 33-34, Morning Session, Wednesday 16 December 2009;
[2815] Evidence of Christopher Aitchison, Paramedic, Pages 87-88, 94-101, Morning Session, Wednesday 16 December 2009; Production 509, Ambulance Service Log, page 4 of 31;
[2816] Pages 74-77, Afternoon Session, Tuesday 15 December 2009;
[2817] Production 1726; Joint Minute, part 1, paragraph 55; see also Production 358, medical records, page 113 (manuscript); Joint Minute, part 1, paragraph 53;
[2818] James Inglis, 16 December 2009, am, p2;
[2819] James Inglis, 16 December 2009, am, pp6-28;
[2820] Pages 90-91, Afternoon Session, Tuesday 15 December 2009; the police statement adopted by Mr Mitchell in this and the previous passage of evidence is relied on by Professor Purser in his revised report, appendix B, at pages 65-66; see also Production 509, Ambulance Service Log, page 4 of 31; Production 359, page 25, Scottish Ambulance Service Patient Report Form; Joint Minute, part 1, paragraph 92;
[2821] Production 1727; Joint Minute, part 1, paragraph 101;
[2822] Pages 110-119, Morning Session, Wednesday 16 December 2009;
[2823] Production 1716; Joint Minute, part 1, paragraph 176;
[2824] Pages 127-129, Morning Session, Wednesday 16 December 2009; Production 949, page 56 (manuscript) - Patient Report Form; Joint Minute, part 1, paragraph 182;
[2825] Production 1715; Joint Minute, part 1, paragraph 184;
[2826] Pages 60-63, Morning Session, Wednesday 16 December 2009;
[2827] Production 1705; Joint Minute, part 1, paragraph 160; see also Patient Report Form in Production 948, page 8 (manuscript); Joint Minute, part 1, paragraph 158;
[2828] Pages 93-94, Morning Session, Tuesday 15 December 2009;
[2829] Pages 70-81, Morning Session, Wednesday 16 December 2009;
[2830] Production 1714; Joint Minute, part 1, paragraph 13;
[2831] Brigid Boyle, 16 February 2010, am, pp3-4;
[2832] Brigid Boyle, 16 February 2010, am, p21;
[2833] Brigid Boyle, 16 February 2010, am, p22;
[2834] Brigid Boyle, 16 February 2010, am, p22;
[2835] Sarah Meaney, 18 February 2010, am, p59;
[2836] Sarah Meaney, 18 February 2010, am, pp126-127;
[2837] Sarah Meaney, 18 February 2010, am, pp126-127;
[2838] Sarah Meaney, 18 February 2010, am, p127;
[2839] Sarah Meaney, 18 February 2010, am, p128;
[2840] Sarah Meaney, 18 February 2010, am, pp130-132;
[2841] Sarah Meaney, 18 February 2010, am, p131;
[2842] Sarah Meaney, 18 February 2010, am, p131;
[2843] Madeleine Asken, 16 November 2009, am, pp20-21;
[2844] Janette Bulloch, 16 November 2009, am, p35;
[2845] John Lappin, 16 November 2009, am, pp48-49;
[2846] Agnes McWee, 16 November 2009, am, pp74-78;
[2847] Isobel Caskie, 16 November 2009, pm, pp39-40;
[2848] Agnes Crawford, 16 November 2009, pm, p58;
[2849] Patrick McGuire, 17 November 2009, am, pp10-11;
[2850] Gail Stewart, 16 November 2009, pm, pp16-19;
[2851] Deborah Milne, 16 November 2009, am, p136;
[2852] Helen Carpenter, 16 November 2009, pm, pp5-7;
[2853] Tracey Farrer, 24 November 2009, am, pp122-125;
[2854] Yvonne Carlyle, 27 November 2009, am, pp52-55;
[2855] Irene Richmond, 1 December 2009, am, pp144-149;
[2856] See generally, Isobel Queen, 2 December 2009, pm, pp74-80;
[2857] James Clark, 9 December 2010, am, p84;
[2858] Gordon Hector, 14 December 2010, p62;
[2859] James Clark , 9 December 2009,am, p80;
[2860] James Clark, 9 December 2009, am, p71;
[2861] David Buick, 7 December 2009, pm, pp6-7;
[2862] David Buick, 7 December 2009, am, p90;
[2863] John Kinsella, 21 June 2010, am, p45; Production 1782, p8;
[2864] John Kinsella, 21 June 2010, am, p46; Production 1782, p8;
[2865] David Purser, 14 June 2010, pm, p84;
[2866] John Kinsella, 21 June 2010, am, pp35-39;
[2867] Production 2053, p28;
[2868] Joint Minute, part 1, paragraph 163;
[2869] David Purser, 15 June 2010, am, pp81-82;
[2870] David Pursuer, 15 June 2010, am, pp82-83;
[2871] David Purser, 15 June 2010, am, pp83-84;
[2872] David Purser, 15 June 2010, am, pp83-84;
[2873] David Purser, 15 June 2010, am, p88;
[2874] David Purser , 15 June 2010, am, p88; Production 2053, p42;
[2875] David Purser , 15 June 2010, am, p88; Production 2053, p42;
[2876] David Purser, 15 June 20; Production 2053, p43;
[2877] Ross Munro, 15 December 2010, am, pp115-117;
[2878] David Purser, 15 December 2010, am, p90;
[2879] David Purser, 15 December 2010, am, p92; Production 2053, p44;
[2880] David Purser, 15 December 2010, am, p95; Production 2053, p28, Table 5;
[2881] David Purser, 15 December 2010, am, p93; Production 2053, pp44-45;
[2882] Jill Cummings, 18 November 2009, pm, p43, production 860A;
[2883] Jill Cummings, 18 November 2009, pm, p52, production 860M;
[2884] Jill Cummings, 18 November 2009, pm, p51, production 860L;
[2885] Jill Cummings, 18 November 2009, pm, p49, production 860I;
[2886] Jill Cummings, 18 November 2009, pm, pp48-49, production 860H;
[2887] Jill Cummings, 18 November 2009, pm, pp46-47, production 860F;
[2888] Jill Cummings, 18 November 2009, pm, p48, production 860G;
[2889] Jill Cummings, 18 November 2009, pm, pp50-51, production 860K;
[2890] Jill Cummings, 18 November 2009, pm, pp49-50, production 860J;
[2891] Jill Cummings, 18 November 2009, pm, pp43-44, production 860B;
[2892] Jill Cummings, 18 November 2009, pm, pp44-45, production 860C;
[2893] Jill Cummings, 18 November 2009, pm, pp45-46, production 860E
[2894] Jill Cummings, 18 November 2009, pm, p45, production 860D;
[2895] David Thurley, 17 November 2009, pm, pp46-49;
[2896] David Thurley, 17 November 2009, pm, pp49-54;
[2897] David Thurley, 17 November 2009, pm, pp54-61;
[2898] David Thurley, 17 November 2009, pm, pp69-74;
[2899] David Thurley, 17 November 2009, pm, pp65-69;
[2900] David Thurley, 17 November 2009, pm, pp62-65;
[2901] David Thurley, 18 November 2009, am, pp137-144;
[2902] David Thurley, 18 November 2009, am, pp86-97;
[2903] David Thurley, 18 November 2009, am, p89;
[2904] David Thurley, 17 November 2009, pm, pp77-87;
[2905] David Thurley, 18 November 2009, am, pp1-8
[2906] David Thurley, 18 November 2009, am, pp12-21;
[2907] David Thurley, 18 November 2009, am, pp21-30;
[2908] David Thurley, 18 November 2009, am, pp30-39;
[2909] David Thurley, 18 November 2009, am, pp39-46;
[2910] David Thurley, 18 November 2009, am, pp47-56;
[2911] David Thurley, 18 November 2009, am, pp57-69;
[2912] David Thurley, 18 November 2009, am, pp73-86;
[2913] David Thurley, 18 November 2009, am, pp86-97;
[2914] David Thurley, 18 November 2009, am, pp97-107;
[2915] David Thurley, 18 November 2009, am, pp107-120;
[2916] David Thurley, 18 November 2009, am, pp121-122;
[2917] David Robertson, 8 February 2010, pm, pp26-29;
[2918] David Robertson, 8 February 2010, pm, pp29-31; Karen Clark, 10 February 2010, am, pp136-137;
[2919] David Robertson, 8 February 2010, pm, pp44-47
[2920] David Robertson, 8 February 2010, pm, pp51-53;
[2921] David Robertson, 8 February 2010, pm, pp51-52;
[2922] David Robertson, 8 February 2010, pm, pp53-54;
[2923] David Robertson, 8 February 2010, pm, pp54-58;
[2924] David Robertson, 9 February 2010, am, pp50-3; Production 978, page 15; production 1798, page 65; Production 887X
[2925] David Robertson, 9 February 2010, am, p53; Production 978, page 15;
[2926] David Robertson, 9 February 2010, am, pp6-7; Production 978, page 10;
[2927] Production 978, pp7-8; David Robertson, 9 February 2010, pp142-145;
[2928] David Robertson, 8 February 2010, pm, pp54-58;
[2929] David Robertson, 8 February 2010, pm, pp71-73; production 1797, p80;
[2930] David Robertson, 8 February 2010, pm, pp73-79;
[2931] David Robertson, 8 February 2010, pm, pp79-84; Production 1797, p84;
[2932] Karen Walker or Clark, 10 February 2010, am, pp148-151;
[2933] Yvonne Carlyle, 27 November 2009, am, pp67-70, 106-111;
[2934] David Robertson, 8 February 2010, pm, pp84-88;
[2935] David Robertson, 8 February 2010, pm, pp88-97;
[2936] cf. Photographs 327G and 327J
[2937] Karen Clark, 10 February 2010, am, pp151-155;
[2938] David Robertson, 8 February 2010, pm, pp97-100;
[2939] David Robertson, 9 February 2010, am, pp16-24, production 1797, p89; Production 1795, p8;
[2940] See eg. productions 340C, 340H and 340J
[2941] David Robertson, 9 February 2010, pp24-47; production 340;
[2942] David Robertson, 9 February 2009, am, pp53-60; production 338;
[2943] David Robertson, 9 February 2009, am, pp66-73, production 339;
[2944] David Robertson, 9 February 2009, am, pp74-84; production 355; cf. Mr Robertson's report, production 1795, page 16, in which he expressed a view that the door was closed or at most slightly ajar at the time of the fire. Under reference to the inspection of room 10 that was not a view to which Mr Robertson ultimately adhered;
[2945] Karen Walker or Clark, 10 February 2010, am, pp155-159; production 1796, pp18-20;
[2946] David Robertson, 9 February 2010, am, pp84-92; production 354;
[2947] Production 353C;
[2948] Production 353H;
[2949] David Robertson, 9 February 2010, am, pp92-97; production 353;
[2950] David Robertson, 9 February 2010, am, pp135-140; production 1797, page 98; productions 348A, 348E and 348G;
[2951] David Robertson, 9 February 2010, am, pp138-139;
[2952] David Robertson, 9 February 2010, am, pp97-107; production 352;
[2953] Production 351H;
[2954] Production 351I;
[2955] David Robertson, 9 February 2010, am, pp107-114; production 351;
[2956] cf. The pattern on the neighbouring fire door in photograph 351A;
[2957] David Robertson, 9 February 2010, am, pp115-123; production 350;
[2958] David Robertson, 9 February 2010, am, pp123-128; production 349;
[2959] David Robertson, 9 February 2010, am, pp135-140;
[2960] Photograph 347D;
[2961] David Robertson, 9 February 2010, am, p136;
[2962] David Robertson, 9 February 2010, am, pp128-135;
[2963] Jean Edgar, 26 April 2010, pm, pp76-89;
[2964] Jean Edgar, 26 April 2010, pm, pp87-88;
[2965] Yvonne Carlyle, 27 November 2009, am, pp52-55;
[2966] Agnes Crawford
[2967] David Buick, 7 December 2009, am, p. 133 (compare with his evidence about corridor 3 at pp. 82-83). Visibility in the lower floor corridor was clear: James Clark, 9 December 2009, am, pp. 11-12.
[2968] David Buick, 7 December 2010, am, pp. 82-83; David Ferguson, 8 December 2009, am,
[2969] David Buick, 7 December 2009, am, p. 133
[2970] David Buick, 7 December 2009, am, pp. 140-141; David Ferguson, 8 December 2009, pm, pp. 23-26.
[2971] Stuart Mortimore, 11 March 2010, pm, p. 52.
[2972] Stuart Mortimore, 11 March 2010, pm, p. 48.
[2973] Stuart Mortimore, 11 March 2010, pm, pp. 48-49.
[2974] Stuart Mortimore, 11 March 2010, pm, p. 50.
[2975] Stuart Mortimore, 11 March 2010, pm, p. 50.
[2976] Stuart Mortimore, 11 March 2010, pm, pp. 50-51.
[2977] Stuart Mortimore, 11 March 2010, am, p. 27, pm, p. 54.
[2978] Stuart Mortimore, 16 March 2010, am, p. 5.
[2979] Stuart Mortimore, 11 March 2010, am, p. 27, pm, p. 54.
[2980] Stuart Mortimore, 11 March 2010, pm, p. 68.
[2981] Stuart Mortimore, 16 March 2010, am, p. 5.
[2982] Stuart Mortimore, 15 March 2010, pm, p. 67.
[2983] Stuart Mortimore, 15 March 2010, pm, pp. 67-68.
[2984] Stuart Mortimore, 11 March 2010, am, pp. 29-32, pm, pp. 55-56
[2985] Stuart Mortimore, 11 March 2010, pm, p. 56.
[2986] Stuart Mortimore 11 March 2010, pm pp. 57-58.
[2987] Stuart Mortimore, 11 March 2010, pm, pp. 52-53.
[2988] Stuart Mortimore, 16 March 2010, am, pp. 2-4.
[2989] Stuart Mortimore, 15 March 2010, pm, p. 68.
[2990] Stuart Mortimore, 16 March 2010, am, p. 4.
[2991] Stuart Mortimore, 11 March 2010, am, pp. 66-68, pm, pp. 56, 61; 15 March 2010, pm, p. 69.
[2992] Stuart Mortimore, 15 March 2010, pm, p. 69.
[2993] Stuart Mortimore, 15 March 2010, pm, pp. 69-70.
[2994] Stuart Mortimore, 11 March 2010, pm, p. 67.
[2995] Stuart Mortimore, 11 March 2010, pm, p. 68.
[2996] Stuart Mortimore, 15 March 2010, pm, p. 68.
[2997] Stuart Mortimore, 11 March 2010, pm, p. 69.
[2998] Stuart Mortimore, 11 March 2010, pm, p. 69.
[2999] Stuart Mortimore, 11 March 2010, pm, pp. 69-70.
[3000] Stuart Mortimore, 11 March 2010, pm, pp. 65-68, 70
[3001] Stuart Mortimore
[3002] Stuart Mortimore, 16 March 2010, am, pp. 15-16.
[3003] Stuart Mortimore, 16 March 2010, am, pp. 10-13.
[3004] Stuart Mortimore, 16 March 2010, am, pp. 10-13.
[3005] Stuart Mortimore, 16 March 2010, am, pp. 13-15.
[3006] Stuart Mortimore, 16 March 2010, am, p. 14
[3007] Stuart Mortimore, 11 March 2010, pm, p. 66.
[3008] Stuart Mortimore, 16 March 2010, am, pp. 16-18.
[3009] Stuart Mortimore, 15 March 2010, pp. 8-15.
[3010] Stuart Mortimore, 16 March 2010, am, pp. 7-8.
[3011] Stuart Mortimore, 11 March 2010, am, p. 65.
[3012] Stuart Mortimore, 16 March 2010, am, pp. 7-8.
[3013] Stuart Mortimore, 11 March 2010, pm, p. 63.
[3014] Stuart Mortimore, 15 March 2010, pm, pp. 43-44, 16 March 2010, am, pp. 8-10.
[3015] Stuart Mortimore, 15 March 2010, am, pp. 129-130.
[3016] Stuart Mortimore, 18 March 2010, pm, pp. 37-38.
[3017] Stuart Mortimore, 15 March 2010, pm, pp. 68-69, 16 March 2010, am, pp. 21-23.
[3018] Stuart Mortimore, 15 March 2010, pm, p. 68.
[3019] Stuart Mortimore, 15 March 2010, pm, p. 68.
[3020] Stuart Mortimore, 15 March 2010, am, p. 103.
[3021] Stuart Mortimore, 15 March 2010, am, p. 133.
[3022] Stuart Mortimore, 15 March 2010, pm, pp. 31-32.
[3023] Stuart Jagger, 19 March 2010, am, pp. 86-87.
[3024] Stuart Jagger, 19 March 2010, am, pp. 6-10.
[3025] Stuart Jagger, 19 March 2010, am, pp. 11-13
[3026] Stuart Jagger, 19 March 2010, am, pp. 13-15.
[3027] Stuart Jagger, 19 March 2010, am, pp. 15-17.
[3028] Stuart Jagger, 19 March 2010, am, pp. 17-18
[3029] Stuart Jagger, 19 March 2010, am, pp. 18-19.
[3030] Stuart Jagger, 19 March 2010, am, pp. 19-21.
[3031] Stuart Jagger, 19 March 2010, am, pp. 21-24.
[3032] Stuart Jagger, 19 March 2010, am, pp. 24-29
[3033] Stuart Jagger, 19 March 2010, am, pp. 29-39.
[3034] Stuart Jagger, 19 March 2010, am, pp. 39-41.
[3035] Stuart Jagger, 19 March 2010, am, pp. 41-43.
[3036] Stuart Jagger, 19 March 2010, am, pp. 45-47.
[3037] Stuart Jagger, 19 March 2010, am, pp. 47-48.
[3038] Stuart Mortimore, 19 March 2010, am, pp. 48-51.
[3039] Stuart Jagger, 19 March 2010, am, pp. 51-52.
[3040] Stuart Jagger, 19 March 2010, am, pp. 52-57.
[3041] John Madden, 30 March 2010, am, pp. 32-34
[3042] Stuart Jagger, 19 March 2010, am, pp. 72-73.
[3043] Stuart Jagger, 19 March 2010, am, pp. 73-75.
[3044] Stuart Jagger, 19 March 2010, am, p. 75; see also Chapter 33 (formerly 28), paras. 6-8.
[3045] Martin Shipp, 13 April 2010, am, pp. 146-147.
[3046] Martin Shipp, 13 April 2010, am, pp. 113-116.
[3047] Martin Shipp, 13 April 2010, am, p. 114
[3048] Kenneth Macleod, 12 August 2010, p. 86.
[3049] Martin Shipp, 14 April 2010, am, p. 48.
[3050] Joint Minute, paras. 158, 159, 161.
[3051] Martin Shipp, 13 April 2010, pm, p. 6, under reference to Pro 1458, p. 130,
[3052] Martin Shipp, 13 April 2010, am, pp. 118-119.
[3053] Martin Shipp, 13 April 2010, am, pp. 145-146, pm, pp. 6-7.
[3054] Kenneth Macleod, 12 August 2010, am, pp. 87-88.
[3055] Martin Shipp, 13 April 2010, am, pp. 155-160, pm, pp. 1-9, under reference to Pro 1458, pp. 130, 133-136.
[3056] Martin Shipp, 13 April 2010, pm, pp. 9-11, under reference to Pro 1458, p. 137.
[3057] Martin Shipp, 13 April 2010, am, pp. 151-152.
[3058] Label 1564; Martin Shipp, 13 April 2010, am, pp. 11-15, pm, pp. 29ff.
[3059] See Pro 1458, p. 138.
[3060] Martin Shipp, 14 April 2010, am, pp. 2-5; with 13 April 2010, pm, p. 78 (view from Camera E a little later).
[3061] Martin Shipp, 14 April 2010, am, pp. 5-6; along with 13 April 2010, pm, p. 50.
[3062] Martin Shipp, 13 April 2010, pm p. 52.
[3063] Martin Shipp, 13 April 2010, pm, pp. 33-36.
[3064] Martin Shipp, 13 April 2010, pm, p. 7
[3065] Martin Shipp, 13 April 2010, pm, p. 36
[3066] Martin Shipp, 13 April 2010, pm, pp. 52-53.
[3067] Martin Shipp, 13 April 2010, pm, p. 37
[3068] Martin Shipp, 14 April 2010, am, pp. 7-8.
[3069] Martin Shipp, 13 April 2010, pm, p. 79; 14 April 2010, am, p. 9-10, 26.
[3070] Martin Shipp, 13 April 2010, pm, pp. 53-54
[3071] Martin Shipp, 13 April 2010, pm, p. 62; see also p. 55 (Camera B).
[3072] Martin Shipp, 14 April 2010, am, pp. 10-11.
[3073] Martin Shipp, 14 April 2010, am, pp. 11-12.
[3074] Martin Shipp, 13 April 2010, pm, pp. 79-80, 14 April 2010, am, pp. 12-14, 26.
[3075] Martin Shipp, 14 April 2010, am, p. 15
[3076] Martin Shipp, 13 April 2010, pm, pp. 62-63.
[3077] Martin Shipp, 13 April 2010, pm, pp. 56-57, 80-81, 14 April 2010, am, p. 18.
[3078] Martin Shipp, 13 April 2010, pm, pp. 38-39.
[3079] Martin Shipp, 13 April 2010, pm, p. 57.
[3080] Martin Shipp, 13 April 2010, pm, p. 81.
[3081] Martin Shipp, 13 April 2010, pm, pp. 81-82.
[3082] Martin Shipp, 13 April 2010, pm, pp. 57-58.
[3083] Martin Shipp, 13 April 2010, pm, p. 41.
[3084] Martin Shipp, 13 April 2010, pm, p. 41.
[3085] Martin Shipp, 14 April 2010, am, p. 20.
[3086] Martin Shipp, 13 April 2010, pm, pp. 82-83.
[3087] Martin Shipp, 13 April 2010, pm, p. 42.
[3088] Martin Shipp, 14 April 2010, am, pp. 20-21.
[3089] Martin Shipp, 13 April 2010, pm, pp. 42-43.
[3090] Martin Shipp, 13 April 2010, pm, p. 64
[3091] Martin Shipp, 14 April 2010, am, pp. 21-22.
[3092] Martin Shipp, 13 April 2010, pm, p. 44
[3093] Martin Shipp, 13 April 2010, pm, pp. 83-84, 14 April 2010, am, pp. 22-23.
[3094] Martin Shipp, 13 April 2010, pm, p. 45.
[3095] Martin Shipp, 13 April 2010, pm, pp. 74-75.
[3096] Martin Shipp, 13 April 2010, pm, pp. 75-76.
[3097] Martin Shipp, 13 April 2010, pm, p. 76.
[3098] Martin Shipp, 14 April 2010, am, pp. 30-31.
[3099] Martin Shipp, 13 April 2010, am, p. 19, pm, p. 77.
[3100] Martin Shipp, 13 April 2010, pm, pp. 45-48, 77.
[3101] Martin Shipp, 14 April 2010, am, pp. 40, 73.
[3102] Martin Shipp, 14 April 2010, am, p. 73
[3103] Martin Shipp, 14 April 2010, am, pp. 42-47, 73-74.
[3104] Martin Shipp, 14 April 2010, am, pp. 50-52, 74-75.
[3105] Martin Shipp, 14 April 2010, am, pp. 48-50, 75.
[3106] David Purser, 14 June 2010, am, pp. 107-108.
[3107] David Purser, 14 June 2010, am, pp. 84-88, 96-99.
[3108] Martin Shipp, 14 April 2010, am, p. 54
[3109] Martin Shipp, 14 April 2010, am, pp. 58-59; David Purser, 14 June 2010, am, pp. 94-96, 136.
[3110] David Purser, 14 June 2010, am, pp. 86, 134, 136.
[3111] Martin Shipp, 14 April 2010, am, pp. 56-57
[3112] David Purser, 14 June 2010, am, pp. 106-108.
[3113] David Purser, 14 June 2010, am, pp. 106-108.
[3114] David Purser, 14 June 2010, am, pp. 114-124; see further Chapter 40 (formerly 34A), paras. 2.3, 2.4, 6, 7.
[3115] Stuart Mortimore, 15 March 2010, am, pp. 123-124, pm, p. 28.
[3116] Martin Shipp, 14 April 2010, am, pp. 24-25; 16 April 2010, am, pp. 64-65.
[3117] Martin Shipp, 14 April 2010, pm, pp. 62-63, 75-76
[3118] Martin Shipp, 16 April 2010, am, p. 132.
[3119] Martin Shipp, 16 April 2010, am, pp. 130-135.
[3120] See generally, Stuart Jagger, 23 March 2010, am, pp. 53ff, under reference to Pro 1987.
[3121] Stuart Mortimore, 16 March 2010, pm, pp. 53-54.
[3122] Stuart Mortimore, 16 March 2010, pm, pp. 53-54.
[3123] Stuart Jagger, 23 March 2010, am, pp. 81-82.
[3124] Jeffrey Cutler, 15 July 2010, am, pp. 34-35, 40-42.
[3125] Jeffrey Cutler, 15 July 2010, am, p. 40
[3126] Jeffrey Cutler, 15 July 2010, am, p. 42.
[3127] Colin Todd, 26 July 2010, pm, pp. 44-50
[3128] Jeffrey Cutler, 15 July 2010, am, pp. 6-7. For a detailed description of the operation of an ionization detector, see Julian Norris, 6 January 2010, am, pp. 113-114.
[3129] Julian Norris, 6 January 2010, am, p. 114, pm, p. 12.
[3130] Julian Norris, 6 January 2010, pm, pp. 12-13.
[3131] Julian Norris, 6 January 2010, pm, pp. 12-15; Jeffrey Cutler, 15 July 2010, am, pp. 30-32.
[3132] Jeffrey Cutler, 15 July 2010, am, pp. 31-32.
[3133] Jeffrey Cutler, 15 July 2010, am, p. 34.
[3134] Jeffrey Cutler, 15 July 2010, am, pp. 43, 47
[3135] Stuart Mortimore, 17 March 2010, am, p. 97; Martin Shipp, 14 April 2010, pm, p. 79-80. .
[3136] Jeffrey Cutler, 15 July 2010, am, p. 43.
[3137] David Purser, 15 June 2010, am, pp. 109-124.
[3138] Colin Todd, 26 July 2010, pm, pp. 49-51.
[3139] David Robertson, 9 February 2010, am, pp. 103-106.
[3140] Martin Shipp, 14 April 2010, am, p. 65.
[3141] David Purser, 14 June 2010, am, pp. 137-140.
[3142] Yvonne Carlyle, 27 November 2009, am, p. 133.
[3143] Martin Shipp, 13 April 2010, am, p. 86; pm, pp. 22-.29, 14 April 2010, am, p. 33.
[3144] Martin Shipp, 13 April 2010, pm, pp. 25-26.
[3145] Martin Shipp, 13 April 2010, am, p. 86, 14 April 2010, am, pp. 31-32.
[3146] David Purser, 15 June 2010, am, pp. 106, 108-109; see further Chapter 40 (formerly Chapter 34A).
[3147] David Purser, 14 June 2010, pm, pp. 64-65.
[3148] David Purser, 14 June 2010, am, pp. 115-122, 15 June 2010, am pp. 104-107.
[3149] Martin Shipp, 14 April 2010, am, p. 84.
[3150] Martin Shipp, 14 April 2010, am, pp. 86-88.
[3151] Martin Shipp, 14 April 2010, am, pp. 88-89.
[3152] Martin Shipp, 13 April 2010, am, pp. 144-145, pm, pp. 17-18.
[3153] Martin Shipp, 14 April 2010, am, pp. 34-36
[3154] David Purser, 15 June 2010, am, pp. 43-48, 86-87; see Chapter 40 (formerly 34A), paras. 2.3, 2.4, 6, 7.
[3155] Martin Shipp, 14 April 2010, am, pp. 34-36; David Purser, 15 June 2010, am, pp. 46-48, 60-62.
[3156] Martin Shipp, 13 April 2010, am, pp. 96-97, 14 April 2010, am, pp. 92-93.
[3157] Martin Shipp, 14 April 2010, am, pp. 93-94, pm, pp. 60-61.
[3158] Martin Shipp, 14 April 2010, pm, pp. 52-59
[3159] Martin Shipp, 16 April 2010, am, pp. 67-69; 129-130.
[3160] Martin Shipp, 14 April 2010, pm, p. 62.
[3161] Christopher Martin, 29 July 2010, pm, p. 59.
[3162] Christopher Martin, 29 July 2010, pm, pp. 60-61.
[3163] Christopher Martin, 29 July 2010, pm, pp. 59-60.
[3164] Christopher Martin, 29 July 2010, pm, pp. 59, 63-64.
[3165] Christopher Martin, 29 July 2010, pm, p. 64.
[3166] Christopher Martin, 29 July 2010, pm, p. 78,
[3167] Christopher Martin, 29 July 2010, pm, pp. 68-69.
[3168] Christopher Martin, 29 July 2010, pm, pp. 59-60.
[3169] Christopher Martin, 29 July 2010, pm, pp. 61-62.
[3170] Christopher Martin, 29 July 2010, pm, p. 62.
[3171] Christopher Martin, 29 July 2010, pm, p. 61.
[3172] Christopher Martin, 29 July 2010, pm, p. 62.
[3173] Christopher Martin, 29 July 2010, pm, pp. 64, 69.
[3174] Christopher Martin, 29 July 2010, pm, p. 69.
[3175] Christopher Martin, 29 July 2010, pm, p. 72.
[3176] Christopher Martin, 30 July 2010, am, pp. 58-62.
[3177] Christopher Martin, 29 July 2010, pm, p. 70.
[3178] Christopher Martin, 29 July 2010, pm, pp. 70-71, 30 July 2010, am, pp. 56-58.
[3179] Martin Shipp, 14 April 2010, am, pp. 15-17, 26-27.
[3180] Label 1569, Track 1306; Martin Shipp, 15 April 2010, am, pp. 72-82.
[3181] Martin Shipp, 14 April 2010, am, p. 88.
[3182] Martin Shipp, 14 April 2010, am, pp. 94 (Test 2), 128 (Test 3).
[3183] Martin Shipp, 14 April 2010, am, pp. 94-95, 98.
[3184] Martin Shipp, 14 April 2010, pm, pp. 23-24.
[3185] Martin Shipp, 15 April 2010, am, p. 40
[3186] Martin Shipp, 15 April 2010, am, p. 58.
[3187] Christopher Martin, 29 July 2010, pm, p. 66.
[3188] Martin Shipp, 15 April 2010, am, pp. 78-79; Christopher Martin, 29 July 2010, pm, p. 66
[3189] Martin Shipp, 14 April 2010, am, pp. 13-14.
[3190] Christopher Martin, 29 July 2010, pm, pp. 75-76.
[3191] For the aerosols found in cupboard A2, see Chapter 13, para. 22.
[3192] Christopher Martin, 30 July 2010, am, pp. 56-58.
[3193] Christopher Martin, 30 July 2010, am, pp. 58-62.
[3194] Christopher Martin, 30 July 2010, am, pp. 61-64.
[3195] Christopher Martin, 30 July 2010, am, pp. 61-64.
[3196] Christopher Martin, 30 July 2010, am, pp. 89-90.
[3197] See Chapter 30 (formerly 25), para. 9,
[3198] See Chapter 31 (formerly 26), para. 8.14, Chapter 32 (formerly 27), para. 3.5.
[3199] See Chapter 13, para. 22, fior the locations in relation to cupboard A2 where aerosols were found following the fire.
[3200] Stuart Mortimore, 11 March 2010, am, pp. 40-47.
[3201] Joint Minute para. 159.
[3202] Stuart Mortimore, 11 March 2010, pm, p. 60
[3203] Joint Minute, para. 158.
[3204] Stuart Mortimore, 11 March 2010, pm, pp. 60-62
[3205] Stuart Mortimore, 11 March 2010, pm, pp. 61-62.
[3206] Stuart Jagger, 22 March 2010, am, p. 70; David Purser, 14 June 2010, am, p. 63, pm.
[3207] Martin Shipp, 14 April 2010, pm, pp. 72-74; David Purser, 14 June 2010, pm, pp. 62-3.
[3208] Joint Minute, para. 160.
[3209] Stuart Jagger, 22 March 2010, am, pp. 79-82.
[3210] Stuart Jagger, 22 March 2010, am, pp. 82-94.
[3211] Joint Minute para. 161.
[3212] David Purser, 14 June 2010, am, pp. 63, 92-94.
[3213] Robert Anderson, 16 June 2010, pm, pp. 47-end; see also David Purser, 14 June 2010, am, pp. 63-65, pm, pp. 58-63.
[3214] Chapter 28 (formerly Chapter 23), paras. 285-292; Chapter 41 (formerly Chapter 35), para. 8.
[3215] Agnes Crawford, 16 November 2009, pm, p. 63.
[3216] Ibid, pp. 58-59.
[3217] Ibid., pp. 60, 64.
[3218] Ibid., p. 64.
[3219] Ibid., p. 63
[3220] ibid., pp. 64-67, under reference to Mrs. Crawford's police statement.
[3221] Ibid., pp. 60, 67.
[3222] Ibid., p. 67.
[3223] Ibid., pp. 61, 67.
[3224] Ibid., pp. 61, 67.
[3225] James Lygate, 10 August 2010, am, pp. 49-50. Mr. Shipp was, however, unable to explain Mrs. Burns' description of flames at low level: 16 April 2010, am, pp. 55-59.
[3226] James Lygate, 10 August 2010, am, pp. 48-49; pm, p. 33.
[3227] James Lygate, 10 August 2010, am, p. 50.
[3228] David Purser, 15 June 2010, am, p. 63
[3229] David Purser, 15 June 2010, am, pp. 101-102.
[3230] Stuart Mortimore, 16 March 2010, pm, p. 72.
[3231] Stuart Mortimore, 16 March 2010, pm, pp. 72-73.
[3232] Stuart Mortimore, 17 March 2010, am, p. 4.
[3233] Stuart Mortimore, 16 March 2010, pm, pp. 82-83; Christopher Miles, 2 August 2010, am, pp. 57-60.
[3234] Stuart Mortimore, 16 March 2010, pm, p. 83; 17 March 2010, am, pp. 1-2
[3235] Christopher Miles, 2 August 2010, am, pp. 64-65, 77-78.
[3236] Gary Thomson, 11 August 2010, am, pp. 7-9.
[3237] Gary Thomson, 11 August 2010, am, pp. 9-10.
[3238] Christopher Miles, 2 August 2010, am, pp. 79-85.
[3239] Ian Pengelly,
[3240] Christopher Miles, 2 August 2010, am, p. 85
[3241] Christopher Miles, 2 August 2010, am, pp. 62-63, 70-71.
[3242] Christopher Miles, 2 August 2010, am, pp. 43-53.
[3243] Christopher Miles, 2 August 2010, am, pp. 52-53.
[3244] Stuart Mortimore, 16 March 2010, pm, pp. 80-81.
[3245] Martin Shipp, 15 April 2010, am, pp. 87-88.
[3246] Martin Shipp, 14 April 2010, am, pp. 29-30; Thomas Affleck 1 April 2010, pm, p. 6.
[3247] Martin Shipp, 15 April 2010, am, pp. 84-88
[3248] Martin Shipp, 16 April 2010, am, pp. 78-79.
[3249] Stuart Mortimore, 17 March 2010, am, pp. 14-17
[3250] Christopher Miles, 2 August 2010, am, pp. 65-66.
[3251] Christopher Miles, 2 August 2010, am, pp. 60, 73-74.
[3252] Martin Shipp, 14 April 2010, am, pp. 42-47, 73-74.
[3253] Stuart Mortimore, 17 March 2010, am, pp.29-31.
[3254] Stuart Mortimore 17 March 2010, am, pp. 33-36; cf Christopher Miles, 2 August 2010, am, pp. 85-86.
[3255] Stuart Mortimore, 17 March 2010, am, p. 22-28.
[3256] Martin Shipp, 15 April 2010, am, p. 39.
[3257] Martin Shipp, 15 April 2010, am, pp. 1ff
[3258] Martin Shipp, 15 April 2010, am, pp. 3-16.
[3259] Martin Shipp, 15 April 2010, am, pp. 12-14; 16 April 2010, am, p. 86.
[3260] Martin Shipp, 15 April 2010, am, p. 21
[3261] Martin Shipp, 15 April 2010, am, p. 21.
[3262] Martin Shipp, 15 April 2010, am, pp. 21-26
[3263] Martin Shipp, 15 April 2010, am, pp. 38-39.
[3264] Martin Shipp, 15 April 2010, am, pp. 43-47.
[3265] Martin Shipp, 15 April 2010, am, pp. 47-52.
[3266] Martin Shipp, 15 April 2010, am, pp. 53-59.
[3267] Martin Shipp, 15 April 2010, am, pp. 60-61.
[3268] Martin Shipp, 15 April 2010, am, p. 61.
[3269] Martin Shipp, 15 April 2010, am, pp. 61-62.
[3270] Martin Shipp, 15 April 2010, am, pp. 65-66.
[3271] Stanley Wilson, 3 February 2010, am, p. 14.
[3272] Stanley Wilson, 3 February 2010, am, pp. 13-14.
[3273] Martin Shipp, 16 April 2010, am, pp. 92-94.
[3274] Martin Shipp, 15 April 2010, am, pp. 62-63, 16 April 2010, am, pp. 135-8.
[3275] Stuart Mortimore 17 March 2010, am, pp. 43-45
[3276] John Thomson Whyte, 26 November 2009, am, pp. 8-9.
[3277] Julian Norris, 6 January 2010, pm, pp. 21-22.
[3278] Paragraphs 4-5.
[3279] David Purser, 14 June 2010, am, p. 31
[3280] David Purser, 14 June 2010, am, pp. 31-32.
[3281] David Purser, 14 June 2010, am, p. 39
[3282] David Purser, 14 June 2010, am, pp. 34-35.
[3283] David Purser, 14 June 2010, am, pp. 35-36.
[3284] David Purser, 14 June 2010, am, pp. 46-47.
[3285] David Purser, 14 June 2010, am, pp. 53-57.
[3286] David Purser, 14 June 2010, am, pp. 46-53, 68.
[3287] David Purser, 14 June 2010, pm, pp. 83-84, 15 June 2010, am, pp. 4-5.
[3288] David Purser, 14 June 2010, am, pp. 12-13, 15 June 2010, am pp. 15-18.
[3289] David Purser, 14 June 2010, pm, p. 84.
[3290] David Purser, 15 June 2010, am, pp. 15-18.
[3291] Peter Langhorne, 21 December 2009, pm, pp. 38-39.
[3292] David Purser, 14 June 2010, am, pp. 57-59
[3293] David Purser, 14 June 2010, am, p. 56.
[3294] David Purser, 14 June 2010, am, pp. 59-60.
[3295] David Purser, 14 June 2010, am, pp. 60-62.
[3296] David Purser, 14 June 2010, am, pp. 62-65.
[3297] David Purser, 14 June 2010, am, pp. 68-71.
[3298] David Purser, 14 June 2010, am, p. 71.
[3299] David Purser, 14 June 2010, am, pp. 65-68.
[3300] David Purser, 14 June 2010, am, p. 71.
[3301] David Purser, 14 June 2010, am, pp. 81-84.
[3302] David Purser, 14 June 2010, am, pp. 58-59.
[3303] Robert Anderson, 16 June 2010, pm.
[3304] David Purser, 14 June 2010, am, pp. 60-62
[3305] David Purser, 14 June 2010, pm, pp. 73-76, 15 June 2010, am, pp. 28-29.
[3306] David Purser, 14 June 2010, pm, p. 76, 15 June 2010, am, p. 3.
[3307] David Purser, 14 June 2010, am, pp. 129-131; 15 June 2010, am, pp. 52-55.
[3308] David Purser, 15 June 2010, am, pp. 45, 55-56.
[3309] David Purser, 15 June 2010, am, pp. 82-84.
[3310] David Purser, 14 June 2010, am, pp. 81-84.
[3311] David Purser, 14 June 2010, am, pp.100-106 under reference to Pro 1458, p. 99 (manuscript), pm, pp. 64-65.
[3312] David Purser, 14 June 2010, am, pp. 106-114 under reference to Pro 2053, p. 30; pm, pp. 82-83; 15 June 2010, am, p. 38.
[3313] Although Blood samples for the deceased who died at the scene were tested for hydrogen cyanide, with negative results, this does not imply that these deceased were not exposed to hydrogen cyanide at the scene, or that the findings in BRE Test 1 of hydrogen cyanide invalidates the BRE test: hydrogen cyanide is very unstable in blood post mortem; and the measurement of hydrogen cyanide post mortem requires very sensitive instrumentation. The techniques used would not have detected levels below 0.52 mg/l: Robert Anderson, 16 June 2010, pm.
[3314] David Purser, 14 June 2010, am, pp. 137-140.
[3315] David Purser, 14 June 2010, pm, p. 76.
[3316] David Purser, 14 June 2010, pm, pp.77-80, 15 June 2010, am, pp. 3-4, 30-36.
[3317] David Purser, 15 June 2010, am, pp. 44-45.
[3318] David Purser, 14 June 2010, pm, pp. 9-26
[3319] David Purser, 14 June 2010, pm, pp. 24-26
[3320] Page 19.
[3321] David Purser, 14 June 2010, pm, pp. 6-9.
[3322] David Purser, 14 June 2010, pm, pp. 32-34
[3323] David Purser, 14 June 2010, pm, pp. 36-37.
[3324] The toxicological measurements were spoken to by Robert Anderson, 16 June 2010, pm, pp. 47ff. The times derived by Professor Purser were spoken to by him, 14 June 2010, pm, pp. 6-36.
[3325] Joint Minute, para. 4; Professor Langhorne, 21 December 2009, pm, p. 25 under reference to Pro 1714.
[3326] Joint Minute, para. 4.
[3327] Supra
[3328] David Buick, 7 December 2009, pm, pp. 8-10; Gordon Hector, 14 December 2009, am, pp. 76-77.
[3329] Joint Minute, para. 27.
[3330] Alan Campbell, 11 December 2009, am, pp. 74-76; David Walker, 21 December 2009, pm, pp. 67-68.
[3331] David Purser,
[3332] Joint Minute, para. 36.
[3333] Supra.
[3334] Joint Minute, para. 46
[3335] Joint Minute para. 59.
[3336] David Walker, 21 December 2009, pp. 71-72.
[3337] Supra
[3338] James Clark, 9 December 2009, am, pp. 94-96.
[3339] Joint Minute, para. 69.
[3340] David Walker, 21 December 2009, pm, pp. 69-70.
[3341] Supra
[3342] Joint Minute, para. 79.
[3343] Joint Minute, para. 92.
[3344] Joint Minute, para. 105.
[3345] Supra
[3346] David Ferguson, 8 December 2009, pm, pp. 26-30.
[3347] Joint Minute, para. 115.
[3348] David Walker, 21 December 2009, pm, pp. 63-67.
[3349] Supra
[3350] Joint Minute, para. 125.
[3351] David Walker, 21 December 2009, pm, p. 69.
[3352] Supra
[3353] Joint Minute, para. 135.
[3354] David Walker, 21 December 2009, pm, p. 71.
[3355] Supra
[3356] Joint Minute, para. 145.
[3357] David Walker, 21 December 2009, pm, pp. 67-68.
[3358] Supra.
[3359] Marjorie Black, 22 December 2009, am, pp. 64-70 under reference to Pro 1350
[3360] Peter Langhorne, 21 December 2010, pm, p. 8, referring to Production 1714, p. 1.
[3361] Peter Langhorne, 21 December 2010, pm, p. 8.
[3362] David Purser, 14 June 2010, pm, p. 74.
[3363] David Purser, 14 June 2010, pm, p. 76.
[3364] Joint Minute, para. 18; Dr. Marjorie Black, 22 December 2010, am, pp. 1-13, under reference to Pro 1355
[3365] Joint Minute, para. 28; Dr. Marjorie Black, 22 December 2010, am, pp. 13-16 under reference to Pro 1354
[3366] Joint Minute, para. 37; Marjorie Black, 22 December 2010, am, pp. 16-20, under reference to Pro 1356.
[3367] Marjorie Black, 22 December 2009, am, pp. 60-64, under reference to Pro 1349.
[3368] Marjorie Black, 22 December 2009, am, pp. 61-63.
[3369] Marjorie Black, 22 December 2009, am, p. 60
[3370] Joint Minute, para. 60; Marjorie Black, 22 December 2010, am, pp. 20-23 under reference to Pro 1357.
[3371] Joint Minute, para. 70; Marjorie Black, 22 December 2009, pp. 23-26 under reference to Pro 1362.
[3372] Marjorie Black, 22 December 2009, am, pp. 41-51 under reference to Pro 1351.
[3373] Marjorie Black, 22 December 2009, am, pp. 42-46.
[3374] Marjorie Black, 22 December 2009, am, pp. 41-51 under reference to Pro 1351.
[3375] Marjorie Black, 22 December 2009, am, pp. 42-43.
[3376] Marjorie Black, 22 December 2009, am, p. 42.
[3377] Marjorie Black, 22 December 2009, am, p. 52 under reference tyo Pro 1352.
[3378] Marjorie Black, 22 December 2009, am, pp. 53-54.
[3379] Marjorie Black, 22 December 2009, am, pp. 52-53.
[3380] Marjorie Black, 22 December 2009, am, pp. 52-53.
[3381] Marjorie Black, 22 December 2009, am, p. 52.
[3382] Marjorie Black, 22 December 2009, am, pp. 52-53.
[3383] Marjorie Black, 22 December 2009, am, p. 53.
[3384] Joint Minute para. 106; Marjorie Black, 22 December 2009, pp. 26-29 under reference to Pro 1359.
[3385] Joint Minute, para. 116; Marjorie Black, 22 December 2009 pp. 29-32 under reference to Pro 1361.
[3386] Joint Minute, para. 126; Marjorie Black, 22 December 2009, pp. 32-35, under reference to Pro 1358.
[3387] Joint Minute, para. 136; Marjorie Black, 22 December 2009, pp. 36-38 under reference to Pro 1353.
[3388] Joint Minute, para. 146; Marjorie Black, 22 December 2009, pp. 38-40 under reference to Pro 1360.
[3389] Stuart Mortimore, 17 March 2010, am, p. 61.
[3390] Stuart Mortimore, 16 March 2010, am, pp. 23-26. The reference to an "incendive electrical fault" requires to be read along with his recognition that a mechanism involving the ordinary operation of a circuit breaker igniting a flammable cloud of gas was possible.
[3391] Paragraphs 15 to 37.
[3392] Paragraphs 38 to 46.
[3393] Ivan Vince, 11 August 2010, am, p. 34.
[3394] John Madden, 31 March 2010, am, p. 48.
[3395] James Lygate, 10 August 2010, am, p. 64.
[3396] James Lygate, 10 August 2010, am, pp. 64-65
[3397] On the assessment of circumstantial evidence, see below.
[3398] Chapter 11, para. 45.2.
[3399] Chapter 11, paras. 46 to 50.
[3400] See further below.
[3401] Chapter 11, paras. 8-10.
[3402] Chapter 13, para. 14.
[3403] James Lygate, 10 August 2010, pp. 36, 60-61. He acknowledged that some other ignition source in the right location would suffice: 67-68.
[3404] James Lygate, 10 August 2010, p. 52, pm, pp. 37-38
[3405] James Lygate, 10 August 2010, pp. 53-54.
[3406] James Lygate, 10 August 2010, p. 42.
[3407] James Lygate, 10 August 2010, p. 42.
[3408] James Lygate, 10 August 2010, am, p. 57.
[3409] James Lygate, 10 August 2010, am, p. 61, pm, p. 39.
[3410] James Lygate, 10 August 2010, am, p. 88.
[3411] Ivan Vince, 11 August 2010, am, pp. 37-40.
[3412] Ivan Vince, 11 August 2010, am, pp. 35-36.
[3413] Ivan Vince, 11 August 2010, am, pp. 93-95.
[3414] Ivan Vince, 11 August 2010, am, p. 100.
[3415] Ivan Vince, 11 August 2010, am, p. 34; see also pp. 96-97.
[3416] These are described in more detail at paras. 77 ff below.
[3417] Stuart Jagger, 22 March 2010, pm, pp. 4-6.
[3418] Pro 1406, p. 38.
[3419] Stuart Jagger, 22 March 2010, pm, pp. 11-12.
[3420] Stuart Jagger, 22 March 2010, pm, pp. 12-13.
[3421] Stuart Mortimore, 16 March 2010, am, p. 113.
[3422] Ivan Vince, 11 August 2010, am, p. 34.
[3423] Chapter 11, paras. 9-10.
[3424] See Chapter 30 (formerly Chapter 25), para. 9.
[3425] Yvonne Carlyle, 27 November 2009, am, pp. 126-131
[3426] Stuart Jagger, 22 March 2010, am, pp. 53-62.
[3427] Chapter 32 (formerly 27), paras. 4-5.
[3428] See generally Chapter 30 (formerly Chapter 25).
[3429] James Lygate, 10 August 2010, pm, pp. 3-4.
[3430] James Lygate, 10 August 2010, pm, p. 4.
[3431] Chapter 38 (formerly 33) above.
[3432] Eleanor Ward, 24 November 2009, pm, pp. 1-4
[3433] David Robertson.
[3434] Stuart Mortimore, 16 March 2010, am, p. 116.
[3435] See Chapter 38 (formerly Chapter 33).
[3436] See para. 26.b. below.
[3437] James Lygate, 10 August 2010, pm, p. 6.
[3438] Brian Norton, 26 November 2009, am, pp. 85-86, 92-93
[3439] Yvonne Carlyle, 27 November 2009, pm, p. 12.
[3440] Brian Norton, 26 November 2009, am, p. 100.
[3441] Yvonne Carlyle, 27 March 2009, pm, pp. 11-12.
[3442] Isobel Queen, 2 December 2009, pm, p. 82.
[3443] Irene Richmond, 1 December 2009, am, p. 51.
[3444] Stuart Mortimore, 16 March 2010, am, pp. 128-129.
[3445] Allison Cumming, 19 November 2009, pm, pp. 30-31; Sadie Meaney, 19 February 2010, pm, pp. 84-85.
[3446] Pro 562; Allison Cumming, 19 November 2009, pm, pp. 31-33; Phyllis West, 23 November 2009, am, pp. 25-26; Yvonne Carlyle, 27 November 2009, am, p. 47.
[3447] Pro 1745; Phyllis West, 23 November 2009, am, pp. 25-26.
[3448] Yvonne Carlyle, 27 November 2009, am, p. 106.
[3449] Thomas O'Brian, 1 April 2010, pm, pp. 41-48.
[3450] Mark Kane, 1 April 2010, pm, pp. 50-
[3451] Allison Cumming, 19 November 2009, pm, pp. 33-35. On the night of 30 January 2004, Yvonne Carlyle took Mr. Daly from the dayroom to his bedroom using a wheelchair: 27 November 2009, am, pp. 46-47, 50.
[3452] Sadie Meaney, 19 February 2010, pm, pp. 86-87.
[3453] Sadie Meaney, 19 February 2010, pm, pp. 85-86; Mark Kane, 1 April 2010, pm, pp. 58-59.
[3454] Allison Cumming, 19 November 2009, pm. pp. 35-36.
[3455] Allison Cumming, 19 November 2009, pm, p. 36; Irene Richmond, 1 December 2009, am, pp. 54-56.
[3456] Chapter 10, paragraphs 8 to 10.
[3457] The state of the electrical installation following the fire is described in Chapter 11, paras. 40 to 51.
[3458] John Madden, 29 March 2010, am, pp. 63-72.
[3459] Paras. 38 to 41.
[3460] Stuart Mortimore, 11 March 2010, pm, pp. 1-3.
[3461] Stuart Mortimore, 11 March 2010, pm, p. 86.
[3462] Stuart Mortimore, 11 March 2010, pm, p. 90.
[3463] John Madden, 31 March 2010, am, pp. 59-60.
[3464] John Madden, 31 March 2010, am, p. 62.
[3465] John Madden, 29 March 2010, am, p. 129
[3466] Stuart Mortimore, 11 March 2010, am, pp. 121-125. Pro 933 is a radiograph of this MCB.
[3467] John Madden, 29 March 2010, am, pp. 126-128; pm, pp. 1-2 under reference to Label 1504.
[3468] Stuart Mortimore, 15 March 2010, am, pp. 16-18. Photograph 54 (p. 178) of Pro 1454 is a photograph of the internal mechanism of the MCB after it had been opened up.
[3469] Stuart Mortimore, 11 March 2010, am, pp. 89, 92-93, 15 March 2010, am, pp. 21-24.
[3470] Stuart Mortimore,
[3471] John Madden, 31 March 2010, am, pp. 60-62.
[3472] See Chapter 11, para. 43.
[3473] Stuart Mortimore, 11 March 2010, pm, p. 79, 15 March 2010, am, pp. 41, 58; Stuart Jagger, 19 March 2010, am, pp. 4-6
[3474] Stuart Mortimore, 15 March 2010, am, pp. 50-51.
[3475] Stuart Jagger, 19 March 2010, am, pp. 17-18
[3476] Stuart Jagger, 19 March 2010, am, pp. 18-19.
[3477] Stuart Mortimore, 15 March 2010, am, pp. 55-57; Stuart Jagger, 19 March 2010, am, pp. 24-29.
[3478] Stuart Mortimore, 11 March 2010, am, pp. 92-94, 15 March 2010, am, pp. 24-29.
[3479] Stuart Mortimore, 15 March 2010, am, pp. 28-30; 16 March 2010, am, pp. 62-63.
[3480] John Madden, 29 March 2010, pm, pp. 74-79; for this, see Chapter 11, para. 51.
[3481] John Madden, 29 March 2010, pm, pp. 75-76, 30 March 2010, pm, pp. 64-68; see also Stuart Mortimore, 11 March 2010, pm, pp. 36-37.
[3482] John Madden, 29 March 2010, am, pp. 111-112, pm, pp. 53.
[3483] John Madden, 29 March 2010, am, pp. 60-62.
[3484] John Madden, 29 March 2010, pm, p. 62.
[3485] John Madden, 29 March 2010, pm, p. 65.
[3486] John Madden, 29 March 2010, pm, pp. 51-52.
[3487] John Madden, 29 March 2010, pm, pp. 40-43
[3488] John Madden, 29 March 2010, am, p. 113.
[3489] John Madden, 29 March 2010, pm, pp. 55-58
[3490] John Madden, 29 March 2010, pm, p. 60.
[3491] John Madden, 29 March 2010, pm, pp. 63-65, 69-70.
[3492] John Madden, 29 March 2010, pm, p. 70.
[3493] John Madden, 29 March 2010, pm, pp. 65-67.
[3494] John Madden, 29 March 2010, pm, pp. 67-68.
[3495] John Madden, 29 March 2010, pm, p. 76.
[3496] John Madden, 29 March 2010, pm, p. 77.
[3497] John Madden, 30 March 2010, am, pp. 1-5.
[3498] Stuart Mortimore, 11 March 2010, am, pp. 116-117; John Madden, 29 March 2010, am, pp. 70-71; see further Chapter 11, paras.8-10 .
[3499] Stuart Jagger, 19 March 2010, am, pp. 2-3.
[3500] Stuart Mortimore, 11 March 2010, am, p. 113; 16 March 2010, am, p. 32, pp. 48-49.
[3501] Stuart Mortimore, 11 March 2010, am, pp. 114-115; pm, p. 15.
[3502] John Madden, 30 March 2010, pm, p. 68.
[3503] Stuart Mortimore, 11 March 2010, pm, pp. 77-79.
[3504] Stuart Mortimore, 11 March 2010, pm, p. 81; John Madden, 30 March 2010, pm, pp. 68-69.
[3505] John Madden, 30 March 2010, pm, pp. 71-72.
[3506] John Madden, 30 March 2010, pm, pp. 69-70.
[3507] John Madden, 30 March 2010, pm, pp. 71-74.
[3508] Stuart Mortimore, 16 March 2010, am, pp. 33-34, 35; John Madden, 30 March 2010, pm, pp. 69-70.
[3509] Stuart Mortimore, 16 March 2010, am, p. 35.
[3510] Stuart Mortimore, 16 March 2010, am, pp. 35-36.
[3511] John Madden, 30 March 2010, pm, pp. 70-71.
[3512] Stuart Mortimore, 16 March 2010, am, pp. 33-39.
[3513] Stuart Mortimore, 17 March 2010, am, pp. 55-56.
[3514] Stuart Mortimore, 16 March 2010, am, pp. 36-37.
[3515] Stuart Mortmore, 16 March 2010, am, p. 37.
[3516] Stuart Mortimore, 17 March 2010, am, pp. 55-59.
[3517] John Madden, 30 March 2010, am, p. 44.
[3518] Stuart Mortimore, 11 March 2010, pm, pp 87-88.
[3519] Stuart Mortimore, 15 March 2010, am, pp. 18-19, 22; John Madden, 30 March 2010, am, pp. 42-44.
[3520] Stuart Mortimore, 11 March 2010, pm, pp. 89-90.
[3521] Stuart Mortimore, 11 March 2010, pm p. 88.
[3522] John Madden, 30 March 2010, am, pp. 51-52.
[3523] Stuart Mortimore, 16 March 2010, am, p. 77.
[3524] Stuart Mortimore, 16 March 2010, am, pp. 77-79.
[3525] Stuart Jagger, 19 March 2010, am, pp. 2-3; John Madden, 30 March 2010, am, pp. 54-55.
[3526] Para. 63 below.
[3527] Para. 64 below.
[3528] Paras. 65-66 below.
[3529] Paras. 67-69 below.
[3530] Paras. 70-88 below.
[3531] Stuart Mortimore, 16 March 2010, am, pp. 39-41.
[3532] Stuart Mortimore, 16 March 2010, am, pp. 39-41.
[3533] Stuart Mortimore, 16 March 2010, am, pp. 39-41.
[3534] Stuart Mortimore, 16 March 2010, am, pp. 40-41, 67-69.
[3535] Tracey Farrer, 24 November 2009, am, p. 138.
[3536] Stuart Mortimore, 16 March 2010, am, pp. 43-44, pm, pp. 41-44, 18 March 2010, pm, pp. 37-41.
[3537] Stuart Mortimore, 18 March 2010, pm, p. 40.
[3538] Stuart Mortimore, 16 March 2010, am, pp. 43-44.
[3539] Stuart Mortimore, 11 March 2010, pm, pp. 76-77.
[3540] Stuart Mortimore, 18 March 2010, pm, p. 41.
[3541] Stuart Mortimore, 16 March 2010, am, pp. 44, 58-59.
[3542] Stuart Mortimore, 16 March 2010, am, pp. 61-62.
[3543] James Lygate, 10 August 2010, pm, pp. 38-39.
[3544] Chapter 36 (formerly Chapter 31), para. 1.5.
[3545] James Lygate, 10 August 2010, pm, p. 33.
[3546] Stuart Jagger, 19 March 2010, am, pp. 82-3
[3547] Stuart Mortimore, 16 March 2010, pm, p. 44.
[3548] Stuart Mortimore,
[3549] Stuart Mortimore, 16 March 2010, am, pp. 118-119
[3550] Stuart Mortimore, 16 March 2010, pm, p. 55-56, 17 March 2010, am, pp. 103-104.
[3551] Stuart Mortimore, 11 March 2010, pm, pp. 15-16, 16 March 2010, am, p. 47.
[3552] John Madden, 30 March 2010, am, pp. 57-58.
[3553] Chapter 11, paras. 46-47.
[3554] Chapter 11, paras. 48-50.
[3555] Robert Cairney, 2 August 2010, am, pp. 5-12; Colin Reed, 11 June 2010, am, pp. 16-17, 41-42.
[3556] David Millar, 1 April 2010, pm, pp. 14-15.
[3557] David Millar, 1 April 2010, pm, pp. 21-22.
[3558] Stuart Mortimore, 11 March 2010, pm, p. 25, 16 March 2010, am, pp. 50, 53.
[3559] Stuart Mortimore, 16 March 2010, pm, p. 9.
[3560] Stuart Mortimore, 16 March 2010, am, pp. 53-54.
[3561] Stuart Mortimore, 16 March 2010, am, pp. 54-56; see further paras. 64-65 below.
[3562] Stuart Mortimore, 16 March 2010, am, p. 54;see further paras. 66-78 below.
[3563] Stuart Mortimore, 16 March 2010, am, p. 54; John Madden, 30 March 2010, am, pp. 116-117.
[3564] Stuart Mortimore, 16 March 2010, pm, p. 52.
[3565] Stuart Mortimore, 16 March 2010, am, p. 54, pm, p. 16; see also John Madden, 29 March 2010, am, p. 116; 30 March 2010, pm, pp. 79-82.
[3566] Stuart Mortimore, 16 March 2010, am, p. 57
[3567] Stuart Mortimore, 16 March 2010, am, pp. 57-58.
[3568] John Madden, 30 March 2010, pm, pp. 81-83.
[3569] Stuart Mortimore, 16 March 2010, pm, pp. 13-15, p. 52; John Madden, 30 March 2010, pm, pp. 82-83.
[3570] Stuart Mortimore, 16 March 2010, pm, p. 15.
[3571] Stuart Mortimore, 16 March 2010, pm, p. 15-17.
[3572] John Madden, 31 March 2010, am, pp. 11-15.
[3573] John Madden, 31 March 2010, am, p. 15.
[3574] Paras. 77-78.
[3575] John Madden, 30 March 2010, am, pp. 66-67.
[3576] John Madden, 30 March 2010, am, p., 67; Colin Reed, 11 June 2010, am, pp. 11-14, 26-27, 30-31, 45-46.
[3577] Colin Reed, 11 June 2010, am, pp. 14-15.
[3578] John Madden, 30 March 2010, am, pp. 80-82.
[3579] Colin Reed, 11 June 2010, am, pp. 14-15.
[3580] Colin Reed, 11 June 2010, am, pp. 15-16.
[3581] Colin Reed, 11 June 2010, am, pp. 38-39.
[3582] Colin Reed, 11 June 2010, am, pp. 18-19.
[3583] John Madden, 31 March 2010, am, pp. 1-4, 28.
[3584] John Madden, 30 March 2010, am, pp. 78-80.
[3585] John Madden, 30 March 2010, am, p. 82.
[3586] John Madden, 30 March 2010, am p. 113; 1 April 2010, am, pp. 72-77.
[3587] Colin Reed, 11 June 2010, am, pp. 30-33; James Lygate, 10 August 2010, pm, p. 12.
[3588] Stuart Mortimore, 16 March 2010, pm, pp. 11-13.
[3589] John Madden, 30 March 2010, am, pp. 114-116.
[3590] John Madden, 30 March 2010, am, pp. 88-89, 109-110.
[3591] Corresponding approximately to the distance between the circuit breaker in the distribution board in cupboard A2 and the point at which Cable V was clipped to the rafters: John Madden, 30 March 2010, am, pp. 90-91. 92-93.
[3592] John Madden, 30 March 2010, am, pp. 83-110.
[3593] Stuart Mortimore, 16 March 2010, pm, pp. 19-24.
[3594] John Madden, 31 March 2010, pm, pp. 75-77.
[3595] John Madden, 30 March 2010, am, pp. 93-94; 109-110, 31 March 2010, am, pp. 24-25, 1 April 2010 am, pp. 76-79.
[3596] John Madden, 31 March 2010, am, pp. 11-15
[3597] James Lygate, 10 August 2010, pm, p. 12.
[3598] Stuart Mortimore, 18 March 2010, pm, pp. 25-29; John Madden, 30 March 2010, am, p. 74, 31 March 2010, am, pp. 25-26.
[3599] John Madden, 1 April 2010, am, pp. 80-81.
[3600] John Madden, 31 March 2010, am, pp. 26-27; see also 31 March 2010, pm, pp. 73-75.
[3601] Chapter 11, paras. 34-35.
[3602] John Madden, 30 March 2010, am, p. 72.
[3603] John Madden, 30 March 2010, am, p. 72
[3604] John Madden, 30 March 2010, pm, pp. 77-78, 31 March 2010, am, pp. 21-22.
[3605] Stuart Mortimore, 18 March 2010, pm, pp. 25-29; John Madden, 30 March 2010, am, pp. 72-76.
[3606] Chapter 11, para. 46
[3607] Chapter 11, paras. 48-50.
[3608] John Madden, 30 March 2010, am, p. 124.
[3609] John Madden, 1 April 2010, am, pp. 39-40.
[3610] John Madden, 31 March 2010, am, pp. 23-24.
[3611] John Madden, 31 March 2010, pm, pp. 77-78.
[3612] Stuart Mortimore, 11 March 2010, pm, p. 18
[3613] Colin Reed, 11 June 2010, am, p. 18.
[3614] Stuart Mortimore, 16 March 2010, am, pp. 51-52.
[3615] Stuart Mortimore, 16 March 2010, pm, p. 14; John Madden, 30 March 2010, pm, pp. 77-78, 31 March 2010, am, pp. 21-22, 69-71; 1 April 2010, am, pp. 42-45.
[3616] Stuart Mortimore, 16 March 2010, pm, p. 9; and see John Madden, 29 March 2010, am, pp. 118-119 under reference to the Pro 857H.
[3617] John Madden, 1 April 2010, am, pp. 35, 102-104. .
[3618] Stuart Mortimore, 16 March 2010, am, pp. 54-56.
[3619] Stuart Mortimore, 16 March 2010, am, pp. 54-56.
[3620] John Madden, 30 March 2010, pm, pp. 78-81;1 April 2010, am, pp. 46-49.
[3621] Stuart Mortimore, 16 March 2010, pm, pp. 50-51.
[3622] James Lygate, 10 August 2010, pm, p. 20, p. 25
[3623] Stuart Mortimore, 16 March 2010, pm, pp. 51-52.
[3624] John Madden, 31 March 2010, am, pp. 54-56; see also 31 March 2010, pm, pp. 70-71, 80-83.
[3625] John Madden, 31 March 2010, pm, pp. 80-83; see also 1 April 2010, am, pp. 63-70.
[3626] John Madden, 1 April 2010, am, pp. 104-107.
[3627] Stuart Mortimore, 16 March 2010, pm, p. 52.
[3628] We know that Yvonne Carlyle walked past the cupboard very shortly before the initial ignition. On the basis of Mr. Mortimore's evidence, that could have been sufficient to cause the ultimate failure. But there are, on the basis of the evidence of Mr. Madden and Mr. Mortimore taken together, other explanations which would account for ultimate failure of the insulation at this time, and it would not be safe to find as a fact that this was precipitated by Yvonne Carlyle passing along the corridor.
[3629] John Madden, 31 March 2010, am, pp. 32-40.
[3630] Stuart Mortimore, 16 March 2010, am, pp. 80-81
[3631] Stuart Mortimore, 16 March 2010, am, p. 82; Ivan Vince
[3632] Stuart Mortimore, 16 March 2010, pm, p. 47.
[3633] Stuart Mortimore, 16 March 2010, am, p. 83.
[3634] Stuart Mortimore, 16 March 2010, am, pp. 83-84.
[3635] Stuart Mortimore, 16 March 2010, am, pp. 83-84.
[3636] Stuart Mortimore, 16 March 2010, am, pp. 80-81.
[3637] John Madden, 29 March 2010, am, pp. 119-121.
[3638] John Madden, 30 March 2010, am, pp. 19-20.
[3639] Stuart Mortimore, 16 March 2010, am, pp. 80-81; John Madden, 30 March 2010, am, pp. 23-24.
[3640] John Madden, 31 March 2010, am, pp. 29-30.
[3641] Stuart Mortimore, 16 March 2010, am, pp. 80-81; John Madden, 30 March 2010, am, pp. 23-28.
[3642] Stuart Mortimore, 15 March 2010, am, pp. 70-74.
[3643] John Madden, 30 March 2010, pm, p. 8-9.
[3644] Stuart Mortimore, 15 March 2010, am, p. 78; Stuart Jagger 22 March 2010, p. 42; Ivan Vince, 11 August 2010, pp. 36-37.
[3645] Stuart Mortimore, 16 March 2010, am, pp. 86-87; Ivan Vince, 11 August 2010, am, p. 70.
[3646] Stuart Jagger, 19 March 2010, am, pp. 95ff.
[3647] Pro 1406.
[3648] Stuart Mortimore, 15 March 2010, am, pp. 92-93.
[3649] Stuart Mortimore, 16 March 2010, am, pp. 108-9.
[3650] Ivan Vince, 11 August 2010, am, pp. 37-41.
[3651] Stuart Jagger, 22 March 2010, am, p. 42.
[3652] Stuart Mortimore, 15 March 2010, am, p. 93; see also 16 March 2010, am, p. 85.
[3653] Ivan Vince, 11 August 2010, am, pp. 69, 71.
[3654] Stuart Jagger, 19 March 2010, pm, pp. 104-107; Ivan Vince, 11 August 2010, am, pp. 30-31.
[3655] Karen Clark, 9 August 2010, am, p. 94.
[3656] Stuart Mortimore, 2 August 2010, pm, pp. 28-30.
[3657] Stuart Mortimore, 2 August 2010, pm, pp. 30-31.
[3658] Cp Stuart Mortimore, 2 August 2010, pm, pp. 30-31.
[3659] Stuart Jagger, 19 March 2010, pm, pp. 30-31.
[3660] Stuart Jagger, 19 March 2010, pm, pp. 33-35.
[3661] Christopher Martin, 30 July 2010, am, p. 32; Ivan Vince, 11 August 2010, am, pp. 74-75.
[3662] Christopher Martin, 30 July 2010, am, pp. 37-38, pm, pp. 21-22.
[3663] Christopher Martin, 30 July 2010, pm, pp. 52-54.
[3664] Stuart Mortimore, 16 March 2010, am, pp. 87, 93-97; 2 August 2010, pp. 38-41.
[3665] Ivan Vince, 11 August 2010, am, pp. 54-56.
[3666] Christopher Martin, 30 July 2010, pm, p. 17; see also Stuart Mortimore 2 August 2010, pm, p. 17.
[3667] Christopher Martin, 30 July 2010, pm, p. 47.
[3668] Christopher Martin, 30 July 2010, am, p. 24.
[3669] Christopher Martin, 30 July 2010, am, pp. 24-25, 113-114.
[3670] Christopher Martin, 29 July 2010, pm, pp. 62-63.
[3671] Christopher Martin, 29 July 2010, pm, pp. 57-58, 62-63.
[3672] Christopher Martin, 29 July 2010, pm, pp, 67-69.
[3673] Christopher Martin, 30 July 2010, am, pp. 22-23.
[3674] Christopher Martin, 30 July 2010, am, pp. 35-37.
[3675] Christopher Martin, 30 July 2010, am, pp. 25-27.
[3676] Christopher Martin, 30 July 2010, am, pp. 48-49.
[3677] Christopher Martin, 30 July 2010, am, pp. 27-29, 114.
[3678] Christopher Martin, 30 July 2010, am, p. 48.
[3679] Christopher Martin, 30 July 2010, pm, pp. 48-49 (still quite a safe article if they're dented, though he would not keep a dented aerosol in his house)
[3680] Christopher Martin, 30 July 2010, am, pp. 29-31.
[3681] Christopher Martin, 30 July 2010, am, p. 49.
[3682] Stuart Mortimore, 2 August 2010, pm, pp. 17-18.
[3683] Ivan Vince, 11 August 2010, am, p. 73.
[3684] Christopher Martin, 30 July 2010, am, pp. 70-77.
[3685] Stuart Mortimore, 2 August 2010, pm, pp. 20-21; Ivan Vince, 11 August 2010, am, pp. 43-44
[3686] Christopher Martin, 30 July 2010, am, p. 41.
[3687] Christopher Martin, 30 July 2010, am, pp. 56-58.
[3688] Christopher Martin, 30 July 2010, am, pp. 58-62.
[3689] Christopher Martin, 30 July 2010, am, pp. 61-64.
[3690] Christopher Martin, 30 July 2010, am, pp. 61-64.
[3691] Christopher Martin, 30 July 2010, am, pp. 89-90.
[3692] Christopher Martin, 30 July 2010, am, pp. 64-70 (Label 490); 82-89 (Label 488)
[3693] Christopher Martin, 30 July 2010, am, pp. 64-70.
[3694] Christopher Martin, 30 July 2010, am, pp. 93, 96-97.
[3695] Christopher Martin, 30 July 2010, am, pp. 93-94.
[3696] Christopher Martin, 30 July 2010, am, p. 99.
[3697] Christopher Martin, 30 July 2010, am, pp. 95-100, 100-101, pm, pp. 1-4.
[3698] Karen Walker, 9 August 2010, am, pp. 82-87, 101-102.
[3699] Christopher Martin, 30 July 2010, pm, p. 5.
[3700] John Madden, 31 March 2010, am, pp. 49, 51-52.
[3702] John Madden, 1 April 2010, am, pp. 96-97; Stuart Mortimore, 2 August 2010, pm, p. 11.
[3703] Stuart Mortimore, 2 August 2010, pm, p. 14.
[3704] John Madden, 1 April 2010, am, p. 98; Stuart Mortimore, 2 August 2010, pm, p. 11.
[3705] Stuart Mortimore, 2 August 2010, pm, p. 13.
[3706] John Madden, 31 March 2010, am, p. 50; 1 April 2010, am, p. 98.
[3707] Stuart Mortimore, 2 August 2010, pm, pp. 14-16.
[3708] Stuart Jagger, 19 March 2010, pm, p. 51-52.
[3709] John Madden, 29 March 2010, am, p. 42.
[3710] David Millar, 1 April 2010, pm, pp. 14-15, 21-22.
[3711] Alexander Ross, 28 January 2010, pm, p. 72; Robert Cairney, 2 August 2010, am, pp. 10-12; Colin Reed, 11 June 2010, am, pp. 16-17.
[3712] Pro 1948, p. 67; John Madden, 31 March 2010, am, pp. 34-36.
[3713] Robert Cairney, 2 August 2010, am, p. 22.
[3714] Pro 1278, Annex 11 (manuscript p. 84); John Madden, 30 March 2010, am, pp. 125-126.
[3715] Pro 1278, Annex 11 at manuscript p. 85.
[3716] Pro 1236, p. 5; David Millar, 1 April 2010, pm, pp. 20-23, 36-39.
[3717] John Madden, 29 March 2010, am, pp. 122-124.
[3718] John Madden, 31 March 2010, am, pp. 67-68.
[3719] David Millar, 1 April 2010, am, p. 15; Robert Cairney, 2 August 2010, am, pp. 9-11.
[3720] John Madden, 30 March 2010, am, pp. 57-58; John Madden, 31 March 2010, am, pp. 79-80..
[3721] David Millar, 1 April 2010, am, p. 13.
[3722] Pro 1948, Regulation 611-1 (p. 113 electronic, p. 103 at bottom right hand corner); John Madden, 31 March 2010, am, pp. 86-88.
[3723] Pro 1948, Regulations 612, 613; John Madden, 31 March 2010, am, pp. 88-90.
[3724] Pro 1948, Regulation 612; John Madden, 31 March 2010, am, p. 88.
[3725] Alexander Ross, 28 January 2010, am, pp. 49-50.
[3726] Pro 1948, p. 106 (bottom of page); Pro 1415, p. 159; John Madden, 31 March 2010, am, pp. 103, 109-110.
[3727] John Madden, 31 March 2010, am, pp. 104-107. The provisions are as follows: 16th edition, Chapter 73 (Pro 1414, p. 159: see John Madden, 31 March 2010, am, pp. 109-111).
[3728] John Madden, 31 March 2010, am, pp. 122-123.
[3729] John Madden, 31 March 2010, pm, pp. 38-39.
[3730] John Madden, 31 March 2010, pm, pp. 39-40.
[3731] See above.
[3732] 15th edition, Pro 1948, Chapter 63 (p. 106 at bottom right); John Madden, 31 March 2010, am, pp. 93-94; 16th edition, Pro
[3733] Stuart Mortimore, 16 March 2010, pm, p. 18; John Madden, 31 March 2010, am, p. 97.
[3734] John Madden, 31 March 2010, pm, pp. 39-40.
[3735] Pro 1948, Appendix 16, Note (p. 220 at bottom right); John Madden, 31 March 2010, am, pp. 96-100.
[3736] Pp. 22-23.
[3737] Pro 1417; John Madden, 31 March 2010, pm, pp. 1-5.
[3738] Pro 1418, Pro 1419; John Madden, 31 March 2010, pm, pp. 6-8, 12-16.
[3739] John Madden, 31 March 2010, pm, p. 44
[3740] Pro 1108, p. 9; Thomas Balmer, 30 April 2010, pm, pp. 2-3.
[3741] John Madden, 31 March 2010, pm, pp. 4-5.
[3742] Alexander Ross, 28 January 2010, am, pp. 49-50; John Madden, 31 March 2010, pm, p. 47.
[3743] John Madden 31 March 2010, am, p. 94.
[3744] Alexander Ross, 28 January 2010, am, pp. 62-63John Madden, 31 March 2010, am, p. 95, pm, pp. 17-21; David Millar, 1 April 2010, pm, pp. 23-24; Robert Cairney, 2 August 2010, am, pp. 5-6, 14-16.
[3745] Alexander Ross, 28 January 2010, am, p. 63; Stuart Mortimore, 16 March 2010, pm, p. 18; John Madden, 1 April 2010, am pp. 7-8.
[3746] Robert Cairney, 2 August 2010, am, pp. 12-13.
[3747] David Millar, 1 April 2010, pm, pp. 24-25, 29.
[3748] John Madden, 31 March 2010, pm, pp. 19-21; David Millar, 1 April 2010, am, pp. 15-17; Robert Cairney, 2 August 2010, am, pp. 13-14, under reference to Pro 1024D
[3749] Alexander Ross, 28 January 2010, am, p. 63; Stuart Mortimore, 16 March 2010, pm, p. 18.
[3750] John Madden, 31 March 2010, pm, pp. 26-27, 31-32, under reference to Photograph 13 in Pro 1278, confirmed by Mr. Madden at p. 21 as replicating, so far as he could, the incident distribution board.
[3751] John Madden, 31 March 2010, pm, pp. 21-22; David Millar, 1 April 2010, am, pp. 22-26.
[3752] Colin Todd, 26 July 2010, am, p. 59.
[3753] See Chapter 13 above. For the electrical distribution board as a potential source of ignition, see Chapter 11, paragraphs 8-10.
[3754] See Chapter 21 above.
[3755] Paragraphs 3-18 of this Chapter.
[3756] Colin Todd, 26 July 2010, am, p. 59.
[3757] See Chapter 20, para. 15.
[3758] Thomas Balmer, 10 May 2010 pm, p. 8.
[3759] Thomas Balmer, 4 May 2010, pm, p. 67.
[3760] Martin Shipp, 14 April 2010, pm, pp. 27-28.
[3761] Martin Shipp, 14 April 2010, pm, pp. 28-32
[3762] Martin Shipp, 14 April 2010, pm, pp. 33-34.
[3763] Stuart Mortimore, 17 March 2010, am, pp. 61-62.
[3764] Martin Shipp, 14 April 2010, pm, pp. 42-44
[3765] Martin Shipp, 14 April 2010, pm, pp. 43-48
[3766] Martin Shipp, 14 April 2010, pm, pp. 48-49
[3767] Martin Shipp, 14 April 2010, pm, pp. 49-51
[3768] Martin Shipp, 15 April 2010, am, pp. 53-59.
[3769] Stuart Mortimore, 17 March 2010, am, p. 63.
[3770] Chapter 13, para. 22.
[3771] Chapter 34.
[3772] Stuart Mortimore, 17 March 2010, am, p. 64-72, 78-79.
[3773] Stuart Mortimore, 17 March 2010, am, pp. 73-74.
[3774] Stuart Mortimore, 17 March 2010, am, pp. 74-75.
[3775] Stuart Mortimore, 17 March 2010, am, pp. 62, 73-73; Martin Shipp, 15 April 2010, am, pp. 67-68.
[3776] Paragraphs 3-5 above.
[3777] Paragraphs 6-10 above.
[3778] Stuart Mortimore, 17 March 2010, am, pp. 93-84, 87-90, 99-100.
[3779] Stuart Mortimore, 17 March 2010, am, pp. 76-77, 81.
[3780] Martin Shipp, 15 April 2010, am, pp. 68-69.
[3781] See above, paragraph 1.1.
[3782] See above, paragraph 1.2.
[3783] See above, paragraph 1.3.
[3784] See above, paragraph 12.
[3785] See above, paragraphs 13-17 above.
[3786] Pro 1120, p. 35; David Charters, 20 July 2010, pm, pp. 16-21..
[3787] Colin Power, 11 June 2010, pm, pp. 71-72; Colin Todd.
[3788] Martin Shipp, 15 April 2010, am, pp. 137-138.
[3789] Colin Todd, 26 July 2010, am, pp. 60-61.
[3790] Colin Todd, 27 July 2010, am, pp. 45-46.
[3791] Thomas Balmer, 29 April 2010, am, pp. 90-91.
[3792] Thomas Balmer, 29 April 2010, am, pp. 91-94.
[3793] Pro 816, p. 29; Thomas Balmer, 29 April 2010, am, pp. 94-96.
[3794] Chapter 19, para. 15.
[3795] Sadie Meaney, 22 February 2010, pm, pp. 82-87.
[3796] Anne Jarvie, 21 July 2010, am, pp. 102-105
[3797] Colin Todd, 27 July 2010, am, pp. 46-50.
[3798] Anne Jarvie, 21 July 2010, am, pp. 102-108
[3799] Sadie Meaney, 22 February 2010, pm, pp. 86-90.
[3800] Sadie Meaney, 22 February 2010, pm, pp. 90-92.
[3801] Anne Jarvie, 21 July 2010, am, pp. 106-107.
[3802] Pro 1378, para. 5.2; David Charters, 20 July 2010, am, pp. 81-82
[3803] Colin Todd, 27 July 2010, am, pp. 23-24.
[3804] Pro 1436, p. 36; Martin Shipp, 16 April 2010, am, 14-15; Colin Todd, 27 July 2010, am, pp. 24-25
[3805] Pro 1436, p. 7; Martin Shipp, 16 April 2010, am, pp. 16-17.
[3806] Colin Todd, 27 July 2010, am, pp. 27-29
[3807] 3rd edn, Pro 1434, p. 27; Martin Shipp, 16 April 2010, am, pp. 13-14; Colin Todd, 27 July 2010, am, pp. 29-30.
[3808] Colin Todd, 27 July 2010, am, pp. 31-34
[3809] Colin Todd, 27 July 2010, am, pp. 25-26.
[3810] David Charters, 20 July 2010, am, pp. 84-87.
[3811] David Charters, 20 July 2010, am, pp. 87-88
[3812] Martin Shipp, 15 April 2010, am, pp. 137-139; David Charters, 20 July 2010, am, p. 88.
[3813] Colin Todd, 26 July 2010, pm, pp. 94-95
[3814] Colin Todd, 26 July 2010, pm, pp. 95-96.
[3815] Martin Shipp, 15 April 2010, am, pp. 132-133; Colin Todd, 26 July 2010, pm, pp. 97-100, 27 July 2010, am, pp. 1-12.
[3816] Martin Shipp, 15 April 2010, am, pp. 133-137; Colin Todd, 27 July 2010, am, pp. 12-23.
[3817] Martin Shipp, 15 April 2010, am, pp. 134-135.
[3818] David Charters, 20 July 2010, am, p. 90.
[3819] Martin Shipp, 15 April 2010, am, pp. 139-140.
[3820] David Charters, 20 July 2010, am, pp. 87-88
[3821] Colin Todd, 27 July 2010, am, p. 36-40.
[3822] Martin Shipp, 15 April 2010, am, pp. 139-140; pm, pp. 8-10; Anne Jarvie, 21 July 2010, am pp. 111-112.
[3823] Colin Todd, 27 July 2010, am, p. 40.
[3824] Thomas Balmer, 10 May 2010, pm, pp. 32-33.
[3825] Alan Balmer, 4 June 2010, am, p. 93.
[3826] Martin Shipp, 13 April 2010, p. 101.
[3827] Martin Shipp, 13 April 2010, p. 101.
[3828] For the status of the various bedroom doors, see Chapter 29 above.
[3829] Stuart Mortimore, 17 March 2010, am, pp. 100-101; Martin Shipp, 14 April 2010, am, pp. 52-53.
[3830] David Purser, 14 June 2010, am, pp. 107-108.
[3831] Martin Shipp, 14 April 2010, am, pp. 123-127.
[3832] Martin Shipp, 14 April 2010, am, pp. 133-34.
[3833] Martin Shipp, 14 April 2010, am, pp. 136-142.
[3834] Martin Shipp, 14 April 2010, am, p. 134.
[3835] Martin Shipp, 14 April 2010, am, pp. 135-6, 150-152.
[3836] Martin Shipp, 14 April 2010, am, pp. 149-150, 15 April 2010, am, pp. 91-92. .
[3837] Martin Shipp, 14 April 2010, am, pp. 142-147.
[3838] Martin Shipp, 15 April 2010, am, pp. 88-105
[3839] David Purser, 15 June 2010, am, pp. 80, 102-103
[3840] David Purser, 15 June 2010, am, pp. 82-83, 88, 95-97.
[3841] David Purser, 15 June 2010, am, p. 80; Christine Young, 11 August 2010, am, pp. 2-5.
[3842] Martin Shipp, 15 April 2010, am, pp. 104-105.
[3843] Martin Shipp, 15 April 2010, am, pp. 105-108.
[3844] Paragraph 21 above.
[3845] Christopher Miles, 2 August 2010, am, p. 94.
[3846] Christopher Miles, 2 August 2010, am, p. 98.
[3847] Martin Shipp, 16 April 2010, am, p. 15.
[3848] Christopher Miles, 2 August 2010, am, pp. 97-98.
[3849] Colin Todd, 27 July 2010, am, pp. 91-92.
[3850] Martin Shipp, 14 April 2010, am, pp. 148-152, pm, pp. 83-84; 15 April 2010, am, pp. 91-92.
[3851] Martin Shipp, 15 April 2010, am, pp. 117-118.
[3852] Martin Shipp, 15 April 2010, am, pp. 118-119.
[3853] Martin Shipp, 15 April 2010, am, pp. 128-130.
[3854] Martin Shipp, 16 April 2010, am, pp. 82-83.
[3855] Martin Shipp, 16 April 2010, am, pp. 81-82.
[3856] Martin Shipp, 16 April 2010, am, pp. 108-111.
[3857] Martin Shipp, 16 April 2010, am, pp. 111-116.
[3858] John Madden; Colin Todd, 28 July 2010, am, p. 116; but see Colin Power, 11 June 2010, pm, pp. 70-71. .
[3859] HTM 84, Pro 1436, p. 20; SHTM 84, 3rd edn, para. 4.6, Pro 1434, p. 21; Martin Shipp, 16 April 2010, am, p. 6.
[3860] Colin Power 11 June 2010, pm, pp. 68-71.
[3861] Colin Todd, 27 July 2010, am, p. 148, 28 July 2010, am, p. 116.
[3862] Colin Todd, 27 July 2010, pm, pp. 1-3.
[3863] Martin Shipp, 16 April 2010, am, p. 83.
[3864] Martin Shipp, 14 April 2010, pm, pp. 34-42.
[3865] Martin Shipp, 14 April 2010, pm, pp. 41-42, 16 April 2010, am, pp. 61-62.
[3866] Martin Shipp, 16 April 2010, am, pp. 60-62, 69-71.
[3867] Paragraph 12.2 above.
[3868] Paragraph 12.1 above.
[3869] Paragraph 13 above.
[3870] Colin Todd, 26 July 2010, am, pp. 62-63, 27 July 2010, am, pp. 62-63; David Charters, 20 July 2010, am, pp. 113-114.
[3871] Chapter 5, paras. 2-3.
[3872] Chapter 5, paras. 6-7.
[3873] Ellen (Helen) Milne and Margaret Lappin, Chapter 5, paras. 18, 23.
[3874] Agnes Dennison and Annie Thomson, Chapter 5, paras. 17, 25
[3875] Thomas Cook, Chapter 5, para. 15.
[3876] Mary McKenner and Annie (Nan) Stirrat, Chapter 5, paras. 19, 24,
[3877] Helen (Ella) Crawford, Chapter 5, para. 16.
[3878] Chapter 21, para. 5.3.
[3879] Chapter 21, para. 5.4.
[3880] Chapter 21, para. 6.
[3881] Chapter 21, paras. 6.2.
[3882] Colin Todd, 27 July 2010, am, pp. 62-66.
[3883] David Charters, 20 July 2010, am, pp. 115-116.
[3884] David Charters, 20 July 2010, am, pp. 120-122.
[3885] David Charters, 20 July 2010, am, pp. 113-114, 121-122; Colin Todd, 26 July 2010, am, p. 63; 27 July 2010, am, pp. 62-64.
[3886] Alan Balmer, 4 June 2010, am, pp. 95-96.
[3887] Pro 1378, p. 5; Martin Shipp, 16 April 2010, am, pp. 21-22.
[3888] Pro 1436, p. 27; Martin Shipp, 16 April 2010, am, p. 12.
[3889] HTM 84, Pro 1436, p. 9.
[3890] 3rd edn, Pro 1434, p. 26; Martin Shipp, 16 April 2010, am, pp. 10-12.
[3891] Cp Martin Shipp, 16 April 2010, am, p. 103.
[3892] Colin Todd, 26 July 2010, am, pp. 63-64, 27 July 2010, am, pp. 58-59.
[3893] Colin Todd, 27 July 2010, am, pp. 59-62.
[3894] Martin Shipp, 16 April 2010, am, p. 103.
[3895] Chapter 8, para. 11.
[3896] Pro 1107, p. 70; also drawings warranted for purposes of amendment Pro 1106, p. 4.
[3897] Pro 1107, p. 36; with amendment Pro 1106, p. 7
[3898] Martin Shipp, 16 April 2010, am, p. 86.
[3899] Martin Shipp, 15 April 2010, am, pp. 31-33, 64; 16 April 2010, am, pp. 89-96.
[3900] Martin Shipp, 16 April 2010, am, pp. 87-89
[3901] Martin Shipp, 15 April 2010, am, pp. 29-30, 42-43, 16 April 2010, am, pp. 86-87.
[3902] Martin Shipp, 15 April 2010, am, pp. 22-31, 41-42, 50-51.
[3903] Martin Shipp, 15 April 2010, am, p. 56
[3904] Martin Shipp, 15 April 2010, am, p. 65, 16 April 2010, am, pp. 87-91, 94.
[3905] Martin Shipp, 16 April 2010, am, pp. 92-94; see Chapter 37, paras. 22-23.
[3906] Chapter 37, para. 20.1.
[3907] Martin Shipp, 15 April 2010, am, pp. 62-63, 16 April 2010, am, pp. 135-8. At 16 April 201, am, p. 137, Mr. Shipp stated "there is ... the possibility that ... the presence of the ducting could have by itself over the full duration of the test have produced potentially life threatening conditions in corridor three, but that is not what we actually observed in our experiments."
[3908] Chapter 39 above.
[3909] Wardlaw v. Bonnington Castings Ltd 1956 SC (HL) 26.
[3910] Martin Shipp, 16 April 2010, am, pp. 94-96.
[3911] Isobel Queen, 2 December 2009, pm, p32; Irene Richmond, 1 December 2009, am, pp124-125;
[3912] Irene Richmond, 1 December 2009, am, P125; Isobel Queen, 2 December 2009, pm, pp34-35;
[3913] Steven Campbell, 8 January 2010, am, pp99-100;
[3914] Steven Campbell, 8 January 2010, am, p100;
[3915] Thomas Balmer, 5 May 2010, am, p. 92.
[3916] Thomas Balmer, 30 April 2010, am, pp. 89-90.
[3917] Martin Shipp, 15 April 2010, am, pp. 147-149.
[3918] Chapter 44(4)(A) below.
[3919] Thomas Balmer, 5 May 2010, am, p. 92; Chapter 44(4)(B) below.
[3920] Chapter 44(4)(c) below.
[3921] Iain Fothringham, 15 January 2010, pm, pp. 24-25.
[3922] Iain Fothringham, 15 January 2010, pm, p. 25.
[3923] Chapter 9, paras. 20-22.
[3924] Julian Norris, 7 January 2010, am, p. 140.
[3925] Chapter 9, para. 11.
[3926] BS 5839-I:1988, para. 15.4 (Pro 1827, p. 29); Colin Todd, 26 July 2010, am, pp. 65-71.
[3927] Colin Todd, 26 July 2010, am, pp. 72-74.
[3928] Colin Todd, 26 July 2010, am, pp. 71-72.
[3929] Iain Fothringham, 15 January 2010, pm, p. 86.
[3930] George Muir, 18 January 2010, pm, p. 86.
[3931] Mr. Norris stated that if he were fitting an alarm system in care premises today he would recommend the use of such a system but that he would not be critical of someone in the early 19902 installing a conventional system in a care home: 7 January 2010, am, pp. 13-19, 114-115
[3932] Colin Todd, 26 July 2010, am, pp. 17-20
[3933] Colin Todd, 29 July 2010, am, pp. 101-107.
[3934] Colin Todd, 28 July 2010, am, pp. 139-141
[3935] Chapter 28.
[3936] Stuart Mortimore, 17 March 2010, am, pp. 93-95, 131-132.
[3937] Stuart Mortimore, 17 March 2010, am, pp. 97-98; Martin Shipp, 14 April 2010, am, pp. 27-28; pm, p. 78.
[3938] Chapter 32, para. 2.
[3939] Chapter 32, paras. 6-7.
[3940] Martin Shipp, 14 April 2010, am, pp. 27-28.
[3941] Thomas Balmer, 10 May 2010, pm, p. 18; Alan Balmer, 3 June 2010, pm, pp. 30-31.
[3942] Thomas Balmer, 10 May 2010, pm, p. 23.
[3943] Stuart Mortimore, 17 March 2010, am, p. 99; Thomas Balmer, 10 may 2010, pm, pp. 19-21; Janette Midda 17 June 2010, am, p.. 57-59, 62-63.
[3944] Martin Shipp, 15 April 2010, am, pp. 142-143;
[3945] It is the Crown submission that it would have been a reasonable precaution for this to have been made immediately. But even following the procedure which pertained at Rosepark, if the fire had been identified promptly, a call would have been made to the Fire Service significantly earlier than was in fact the case on 31 January 2004.
[3946] Isobel Queen, 3 December 2009, am, pp. 39-40.
[3947] David Charters, 20 July 2010, pm, pp. 2-4; Anne Jarvie, 21 July 2010, am, pp. 61-64.
[3948] Anne Jarvie, 21 July 2010, am, pp. 34-35.
[3949] David Charter, 20 July 2010, pm, pp. 7-8.
[3950] Anne Jarvie, 21 July 2010, am, pp. 92-93.
[3951] Pro 1120, p. 34; Dvaid Charters, 20 July 2010, pm, pp. 8-9; Anne Jarvie, 21 July 2010, am, p. 142.
[3952] Anne Jarvie, 21 July 2010, am, pp. 59-60, 66-71.
[3953] Anne Jarvie, 21 July 2010, am, pp. 45-
[3954] Anne Jarvie, 21 July 2010, am, p. 67.
[3955] Anne Jarvie, 21 July 2010, am, pp. 72-75.
[3956] Pro 1378, p. 12.
[3957] Pro 1436, p. 22; Martin Shipp, 16 April 2010, am, p. 9; Colin Todd, 28 July 2010, am, pp. 37-39.
[3958] 1st edn, Pro 1227, p. 40; Colin Todd, 28 April 2010, am, p. 44; 3rd edn, Pro 1434, p. 23; Martin Shipp, 16 April 2010, am, pp. 8-9.
[3959] Pro 1120, p. 33; David Charters, 20 July 2010, am, pp. 129-130.
[3960] Pro 256, p. 43.
[3961] Pro 221, p. 17; Thomas Balmer, 4 May 2010, pm, pp. 9-12.
[3962] Pro 221, p. 17; Thomas Balmer, 4 May 2010,
[3963] Alan Balmer, 3 June 2010, pm, pp. 27-28.
[3964] Thomas Balmer, 4 May 2010, pm, pp. 27-28.
[3965] Thomas Balmer, 4 May 2010, am, p. 91.
[3966] Thomas Balmer, 29 April 2010, am, pp. 87-89; 4 May 2010, pm pp. 27-28, 35-36, 36-38.
[3967] Chapter 20, paras. 38-39.
[3968] Some staff who had been employed at Rosepark for a long time could have attended one or more of Mr. McNeilly's lectures and also attended the introduction of the fire safety video.
[3969] Chapter 20, paras.33-37
[3970] Anne Jarvie, 21 July 2010, am, pp. 34-40.
[3971] Anne Jarvie, 21 July 2010, am, pp. 46-54.
[3972] Chatper 20, para. 38.
[3973] Chapter 20, paras. 50-53.
[3974] Chapter 20, paras. 61-62.
[3975] Anne Jarvie, 21 July 2010, am, pp. 75-80.
[3976] Chapter 20, paras. 63-74.
[3977] Thomas Balmer, 6 May 2010, am, pp. 113-114.
[3978] Thomas Balmer, 6 May 2010, am, p. 119.
[3979] Isobel Queen, 3 December 2009, am, p. 36.
[3980] Chapter 38(4)(A), paras. 6-9.
[3981] Chapter 38(4)(B), para. 10
[3982] The two panels are described in Chapter 9, paras. 2-3 and 4-8.
[3983] Colin Todd, 28 July 2010, pm, pp. 75-76.
[3984] Isobel Queen, 3 December 2009, am, p. 38.
[3985] Chapters 38(4)(A) and (B).
[3986] Martin Shipp, 15 April 2010, pm, p. 6; Colin Todd, 26 July 2010, am, p. 80; pp. 137-141; Sir Graham Meldrum, 3 August 2010, am, pp92-95; 6 August 2010, pm, p94;
[3987] Sir Graham Meldrum, 3 August 2010, am, pp95-96;
[3988] Sir Graham Meldrum, 3 August 2010, am, pp96-98;
[3989] Sir Graham Meldrum, 3 August 2010, am, p101; Production 1408, p7, paragraph 51;
[3990] Sir Graham Meldrum, 3 August 2010, am, p94
[3991] Colin Todd, 26 July 2010, pm, p. 7.
[3992] Ann Jarvie, 21 July 2010, am, pp121-122;
[3993] Cf, Production 1120, pp31, 33;
[3994][3994] Isobel Queen, 2 December 2009, pm, pp29-30
[3995] Sir Graham Meldrum, 3 August 2010, am, p112;
[3996] See para. 14 below;
[3997] Steven Campbell, 7 January 2010, pm, pp53-54;
[3998] Submissions of SF&R, p3, numbered para. 4;
[3999] Colin Gray, 11 December 2009, am, pp155-156;
[4000] David Buick, 7 December 2009, am, p43;
[4001] Sir Graham Meldrum, 6 August 2010, am, pp68-69;
[4002] Cf Submissions of SF&R, p3, numbered para. 3;
[4003] Sir Graham Meldrum, 3 August 2010, am, pp61-64;
[4004] Robert Deans, 5 February 2010, pm, p91;
[4005] Sir Graham Meldrum, 3 August 2010, am, pp58-61
[4006] Brian Sweeney, 13 July 2010, am, pp31-32;
[4007] Archibald McDiarmid, 9 December 2009, pm, pp91-95;
[4008] Archibald McDiarmid, 10 December 2009, am, pp3-10;
[4009] See para. 13, supra.
[4010] Submissions of SF&R, p4, 3rd last para.;
[4011] Sir Graham Meldrum, 3 August 2010, am, pp93-94
[4012] Sir Graham Meldrum, 3 August 2010, pm, pp93-94;
[4013] Sir Graham Meldrum, 3 August 2010, am, pp131-132;
[4014] Sir Graham Meldrum, 3 August 2010, pm, pp95-96;
[4015] Sir Graham Meldrum, 3 August 2010, pm, p135;
[4016] Archibald McDiarmid, 10 December 2009, am, pp40-41;
[4017] Sir Graham Meldrum, 3 August 2010, am, pp125-128;
[4018] Sir Graham Meldrum, 3 August 2010, am, pp128-130; 6 August 2010, pm, pp40-41, 108-109(re-exam); cf. Steven Campbell, 12th January 2010, pp125-126, and Mr Campbell's evidence that no time was lost as a result of the initial attendance arriving at New Edinburgh Road because he required to obtain necessary information from staff;
[4019] Sir Graham Meldrum, 3 August 2010, am, pp134-135; 6 August 2010, pm, pp58-59(cross);
[4020]cf. Sir Graham Meldrum, 3 August 2010, am, p132;
[4021] See submissions of SF&R, p3, para.5;
[4022] Steven Campbell, 12th January 2010, am, pp124-126;
[4023] See alse Steven Campbell, 11th January 2010, am, pp12-13;
[4024] James Clark, 8 December 2009, pm, pp94-95; 9 December 2009, am, pp3-4;
[4025] David Buick, 7 December 2009, am, pp80-81; David Ferguson, 8 December 2009, am, p154;
[4026] Cf Sir Graham Meldrum, 3 August 2010, pm, pp93-94;
[4027] Cf Sir Graham Meldrum, 3 August 2010, pm, pp93-94;
[4028] See chapter 28, para. 143;
[4029] See chapter 28, para. 273 et seq.;
[4030] John Kinsella, 21 June 2010, am, pp2-17;
[4031] Page 7;
[4032] John Kinsella, 21 June 2010, am, pp18-19;
[4033] John Kinsella, 21 June 2010, am, pp19-20;
[4034] John Kinsella, 21 June 2010, am, pp32-33;
[4035] John Kinsella, 21 June 2010, am, p45; Production 1782, p8;
[4036] John Kinsella, 21 June 2010, am, p46; Production 1782, p8;
[4037] David Purser, 14 June 2010, pm, p84;
[4038] John Kinsella, 21 June 2010, am, pp35-39;
[4039] John Kinsella, 21 June 2010, am, pp42-44;
[4040] John Kinsella, 21 June 2010, am, p48;
[4041] John Kinsella, 21 June 2010, am, pp59-61;
[4042] John Kinsella, 21 June 2010, am, p50; David Purser, 14 June 2010, am, pp52-53;
[4043] David Purser, 15 June 2010, am, pp43-48; Production 2053, para. 3.5.1;
[4044]David Purser, 15 June 2010, am, pp45-46; see paras. 26-46 below:
[4045] John Kinsella, 21 June 2010, am, p116; Production 1782, p11;
[4046] David Buick, 7 December 2010, am, pp113-114; David Ferguson, 8 December 2010, pm, p11;
[4047] David Purser, 15 June 2010, am, pp52-53;
[4048] David Purser, 15 June 2010, am, p64;
[4049] David Purser, 14 June 2010, am, pp64-65, 67;
[4050] David Purser, 14 June 2010, am, pp67-68; Production 2053, p37, Figure 11, after adjustment to allow for Professor Purser's back calculation of % carboxyhaemoglobin at rescue;
[4051] David Purser, 15 June 2010, am, pp69-70
[4052] John Kinsella, 21 June 2010, am, pp118-123; David Purser, 15 June 2010, am, p74;
[4053] David Buick, 7 December 2009, am, pp127-128; David Ferguson, 8 December 2009, pm, pp15-16;
[4054] David Purser, 15 June 2010, am, pp55-56;
[4055] David Purser, 15 June 2010, am, pp56-57;
[4056] John Kinsella, 21 June 2010, am, 21 June 2010, am, pp124-125; Production 1782, p12;
[4057] John Kinsella, 21 June 2010, am, p125;
[4058] John Kinsella, 21 June 2010, am, pp127-128;
[4059] David Purser, 15 June 2010, am, p64;
[4060] John Kinsella, 21 June 2010, am, pp129-130; Production 1782, p13;
[4061] David Purser, 15 June 2010, am, p73;
[4062] David Purser, 15 June 2010, am, p64;
[4063] Gordon Hector, 14 December 2009, am, pp64-67;
[4064] John Kinsella, 21 June 2010, am, pp79-82;
[4065] David Purser, 14 December 2009, am, p76;
[4066] John Kinsella, 21 June 2010, am, pp73-76;
[4067] David Purser, 9 August 2010, am, pp4-5; Production 2075, p6;
[4068] David Purser, 9 August 2010, am, pp6-7; Production 2075, p6;
[4069] David Purser, 9 August 2010, am, pp7-9;
[4070] Gordon Hector, 14 December 2010, am, p64;
[4071] James Clark, 9 December 2009, am, pp41-50; Colin Mackie, 10 December 2009, pm, pp94-95;
[4072] David Purser, 14 June 2010, pm, pp76-77;
[4073] Production 1727; Joint Minute, part 1, paragraph 1;
[4074] John Kinsella, 21 June 2010, pm, pp104-108;
[4075] John Kinsella, 21 June 2010, am, pp101-103;
[4076] David Purser, 9 August 2010, am, pp4-5; Production 2075, p6;
[4077] David Purser, 9 August 2010, am, pp5-6; Production 2075, p6;
[4078] David Purser, 9 August 2010, am, p27;
[4079] See eg. David Purser, 9 August 2010, am, pp38-39;
[4080] See conclusions in chapter 29;
[4081] Production 2075;
[4082] David Purser, 9 August 2010, am, pp3. 7-8
[4083] See eg. Brian Sweeney, 13 July 2010, am, pp80-84, on the concept of "defend in place";
[4084] See chapter 28, paras. 201, 202;
[4085] David Buick, 7 December 2011, am, p144;
[4086] David Buick, 7 December 2011, am, p146; see chapter 28, para. 231;
[4087] See para.55;
[4088] See chapter 28, paras. 278, 280;
[4089] See production 2075, p3;
[4090] Thomas Balmer, 4 May 2010, am, pp. 55-57.
[4091] Thomas Balmer, 4 May 2010, am, pp. 57-58.
[4092] Thomas Balmer, 4 May 2010, am, pp. 63-68.
[4093] Thomas Balmer, 4 May 2010, am, pp. 82-83.
[4094] Thomas Balmer, 4 May 2010, am; p. 74, 6 May 2010, pm, p. 22.
[4095] James Reid, 17 February 2010, pm, p. 7-8; David Charters, 20 July 2010, pm, pp. 24-35; Colin Todd, 27 July 2010, pm, pp. 27-28.
[4096] Colin Todd, 27 July 2010, pm, pp. 65-66; see also James Reid, 17 February 2010, pm, pp. 10-11.
[4097] Colin Todd, 27 July 2010, pm, p. 28.
[4098] Colin Todd, 27 July 2010, pm, pp. 61-64; see also James Reid, 17 February 2010, am, pp. 91-93, pm, pp. 81-84..
[4099] James Reid, 17 February 2010, pm, p. 4.
[4100] James Reid, 17 February 2010, pm, pp. 8-9; Colin Todd, 27 July 2010, pm, pp. 44-45
[4101] James Reid, 17 February 2010, pm, pp. 11-12.
[4102] Colin Todd, 27 July 2010, pm, pp. 48-49.
[4103] Colin Todd, 27 July 2010, pm, pp. 49-50.
[4104] Colin Todd, 27 July 2010, pm, pp. 53-55.
[4105] Colin Todd, 27 July 2010, pm, pp. 28-31.
[4106] Colin Todd, 27 July 2010, pm, pp. 37-38; cf James Reid, 17 February 2010, pm, pp. 6, 34.
[4107] James Reid, 17 February 2010, pm, p. 7.
[4108] James Reid, 17 February 2010, pm, p. 6.
[4109] James Reid, 17 February 2010, am, pp. 9-11.
[4110] James Reid, 17 February 2010, pm, p. 17; Colin Todd, 27 July 2010, pm, pp. 31-34.
[4111] Rod Sylvester-Evans, 22 June 2010, am, pp. 2-4.
[4112] Rod Sylvester-Evans, 22 June 2010, am, p. 4.
[4113] David Charters, 20 July 2010, am, pp. 109-110.
[4114] Colin Todd, 27 July 2010, am, pp. 79-88.
[4115] Colin Todd, 27 July 2010, am, p. 88.
[4116] Colin Todd, 27 July 2010, am, pp. 91-92.
[4117] Colin Todd, 27 July 2010, am, pp. 102-103.
[4118] Colin Todd, 27 July 2010, am, pp. 92-94.
[4119] David Charters, 20 July 2010, am, pp. 112-124; Colin Todd, 26 July 2010, am, pp. 62-63, 27 July 2010, am, pp. 62-63, 69.
[4120] Colin Todd, 27 July 2010, am, p. 69-78
[4121] Colin Todd, 27 July 2010, am, pp. 67-69.
[4122] Colin Todd, 27 July 2010, am, pp. 40-41
[4123] Colin Todd, 27 July 2010, am, pp. 40-46, 51-52.
[4124] David Charters, 20 July 2010, pm, pp. 17-18.
[4125] Colin Todd, 27 July 2010, am, pp. 146-153, pm, pp. 1-3; 28 July 2010, am, p. 116.
[4126] Colin Todd, 26 July 2010, am, pp. 134-143, pm, pp. 1-2, 27 July 2010, pm, pp. 68-69; 28 July 2010, pm, pp. 84-89; BS 5839-I:2002, para. 15.2 (Pro 1443, p. 38).
[4127] David Charters, 20 July 2010, am, pp. 132-134; Colin Todd, 26 July 2010, am, pp. 134-143, pm, pp. 1-8.
[4128] Colin Todd, 26 July 2010, am pp. 109-113; 27 July 2010, am, pp. 108-111.
[4129] Colin Todd, 26 July 2010, am, p. 111; 27 July 2010, pm, pp. 50-53.
[4130] Colin Todd, 27 July 2010, am, pp. 103-108, pm, pp. 1-2, 70-72.
[4131] David Charters, 20 July 2010, am, pp. 133-134.
[4132] Colin Todd, 27 July 2010, pm, p. 71.
[4133] Colin Todd, 27 July 2010, am, pp. 108-111, pm, pp. 71-73.
[4134] Colin Todd, 27 July 2010, pm, pp. 73-75.
[4135] Sir Graham Meldrum, 6 August 2010, am, pp71-72;
[4136] Sir Graham Meldrum, 6 August 2010, am, pp74-75;
[4137] Sir Graham Meldrum, 6 August 2010, am, p71
[4138] Sir Graham Meldrum, 6 August 2010, am, p72;
[4139] Sir Graham Meldrum, 6 August 2010, am, p73;
[4140] Sir Graham Meldrum, 3 August 2010, am, p142;
[4141] Isobel Queen, 2 December 2009, am, pp122, 125; Yvonne Carlyle, 27 November 2009, am, p119; Irene Richmond, 1 December 2009, am, p81; Julian Norris, 22 December 2009, pm, p53; and see chapter 23, para. 173;
[4142] Sir Graham Meldrum, 3 August 2010, am, p146;
[4143] Sir Graham Meldrum, 3 August 2010, am, pp146-148, 162-164; and, particularly (in cross), 6 August 2010, pm, pp33-34;
[4144] Sir Graham Meldrum, 3 August 2010, am, pp150-152, 167;Production 2113, paragraph 3.16;
[4145] Sir Graham Meldrum, 3 August 2010, am, pp147-148; pm, pp23-24;
[4146] Steven Campbell, 8 January 2010, pm, pp2-4;
[4147] Brian Sweeney, 13 July 2010, am, pp45-46;
[4148] Sir Graham Meldrum, 3 August 2010, pm, p17;
[4149] Sir Graham Meldrum, 3 August 2010, pm, pp4-8, 10-11, 12-17, 22-24
[4150] Sir Graham Meldrum, 6 August 2010, pm, pp37-39, 48-49 (cross);
[4151] Sir Graham Meldrum, 6 August 2010, pm, pp39-40, 52-54(cross);
[4152] Sir Graham Meldrum, 6 August 2010, pm, pp54-55(cross);
[4153] Sir Graham Meldrum, 6 August 2010, pm, pp49-50 (cross);
[4154] Sir Graham Meldrum, 3 August 2010, pm, pp29-33;
[4155] Sir Graham Meldrum, 3 August 2010, pm, pp33-42, commenting on evidence of Steven Campbell, 8 January 2010, am, pp87-88, 109-110; Production 1408, page 15, paragraph 105(f)-(i); Production 2113, page 3, paragraph 3.5;
[4156] Sir Graham Meldrum, 3 August 2010, pm, pp34-35;
[4157] Sir Graham Meldrum, 3 August 2010, pm, pp41-43, commenting on evidence of Steven Campbell, 8 January 2010, am, pp21-22; Production 1408, paragraph 105(v)(c)-(e); Production 2113, page 3, paragraphs 3.3, 3.5;
[4158] Sir Graham Meldrum, 3 August 2010, pm, pp45-46; Production 1408, page 15, paragraph 105(v)(l)-(o)
[4159] Sir Graham Meldrum, 3 August 2010, pm, pp47-50, commenting on evidence of Steven Campbell, 8 January 2010, am, pp74-76;
[4160] Steven Campbell, 8 January 2010, am, pp74-76;
[4161] Steven Campbell, 8 January 2010, am, pp99-100; Sir Graham Meldrum, 3 August 2010, pm, pp49-61; Production 2113, paragraphs 3.1, 3.12;
[4162] Sir Graham Meldrum, 3 August 2010, am, pp55-56;
[4163] Sir Graham Meldrum, 6 August 2010, am, p74;
[4164] Sir Graham Meldrum, 3 August 2010, pm, pp29-33; 6th August 2010, am, pp28-29;
[4165] Sir Graham Meldrum, 6 August 2010, am, pp71-72;
[4166] Sir Graham Meldrum, 6 August 2010, p71;
[4167] Sir Graham Meldrum, 3 August 2010, pm, pp48-50;
[4168] Sir Graham Meldrum, 3 August 2010, pm, pp54-55;
[4169] Sir Graham Meldrum, 3 August 2010, pm, pp55-58;
[4170] Sir Graham Meldrum, 3 August 2010, pm, pp85-87; Production 2113, paragraph 3.6, commenting on evidence of Steven Campbell, 8th January 2010, pm, p21;
[4171] Steven Campbell, 8 January 2010, pm, pp53-54; 11 January 2010, am, pp70-71;
[4172] Sir Graham Meldrum, 6 August 2010, am, pp39-41; Production 2113, paragraph 3.10;
[4173] Steven Campbell, 11 January 2010, pm, pp14-15; Sir Graham Meldrum, 6 August 2010, am, pp21-24, 42-51; Production 1408, page 11, paragraphs 89, 105(v)(z)-(bb); Production 2113, paragraphs 3.11, 3.13; cf evidence of Alan Campbell, 11 December 2009, am, pp61-62;
[4174] Sir Graham Meldrum, 6 August 2010, am, pp51-52; cf. Steven Campbell, 11 January 2010, p15;
[4175] Sir Graham Meldrum, 6 August 2010, am, pp52-54; Production 2113, paragraph 3.17; Jeffrey Ord, 2 July 2010, am, pp102-104; Brian Sweeney, 13 July 2010, am, pp125-128;
[4176] Brian Sweeney, 13 July 2010, am, pp71-72;
[4177] Steven Campbell, 8 January 2010, pm, pp21-22;
[4178] Steven Campbell, 12 January 2010, am, pp136-137;
[4179] Steven Campbell, 8 January 2010, am, pp109-110;
[4180] Sir Graham Meldrum, 6 August 2010, am, pp58-59;
[4181] Sir Graham Meldrum, 6 August 2010, am, pp32-36;
[4182] Paul Nelson, 15 December 2009, am, pp110-112; Alastair Ross, 14 December 2009, pm, pp64-77;
[4183] Sir Graham Meldrum, 6 August 2010, am, pp20-24; pm, pp22-23;
[4184] Steven Campbell, 11 January 2010, pm, pp26-28;
[4185] Sir Graham Meldrum, 6 August 2010, am, pp15-18;
[4186] Steven Campbell, 11 January 2010, pp67-70;
[4187] David Buick, 7 December 2009, am, pp127-128; David Ferguson, 8 December 2009, pm, pp15-16;
[4188] David Purser, 15 June 2010, am, pp55-56;
[4189] David Purser, 15 June 2010, am, pp56-57;
[4190] John Kinsella, 21 June 2010, am, 21 June 2010, am, pp124-125; Production 1782, p12;
[4191] John Kinsella, 21 June 2010, am, p125;
[4192] John Kinsella, 21 June 2010, am, pp127-128;
[4193] David Purser, 15 June 2010, am, p64;
[4194] John Kinsella, 21 June 2010, am, pp129-130; Production 1782, p13;
[4195] David Purser, 15 June 2010, am, p73;
[4196] James Clark, 9 December 2009, am, pp41-50; Colin Mackie, 10 December 2009, pm, pp94-95;
[4197] David Purser, 14 June 2010, pm, pp76-77;
[4198] Production 1727; Joint Minute, part 1, paragraph 1;
[4199] John Kinsella, 21 June 2010, pm, pp104-108;
[4200] John Kinsella, 21 June 2010, am, pp101-103;
[4201] David Purser, 9 August 2010, am, pp4-5; Production 2075, p6;
[4202] David Purser, 9 August 2010, am, pp5-6; Production 2075, p6;
[4203] Gordon Hector, 14 December 2009, am, pp64-67;
[4204] John Kinsella, 21 June 2010, am, pp79-82;
[4205] David Purser, 14 December 2009, am, p76;
[4206] John Kinsella, 21 June 2010, am, pp73-76;
[4207] David Purser, 9 August 2010, am, pp4-5; Production 2075, p6;
[4208] David Purser, 9 August 2010, am, pp6-7; Production 2075, p6;
[4209] David Purser, 9 August 2010, am, pp7-9;
[4210] Production 2075;
[4211] David Purser, 9 August 2010, am, pp3. 7-8
[4212] Gordon Hector, 14 December 2010, am, p64;
[4213] Sir Graham Meldrum, 6 August 2010, am, pp18-20;
[4214] Sir Graham Meldrum, 3 August 2010, am, pp125-128; and see chapter 44(5), "Delay and its Consequences", paras. 7-8;
[4215] Production 1408, p19;
[4216] Production 566;
[4217] Submissions for SF&R;
[4218] Chapter 28, para. 171;
[4219] See Chapter 1, paras. 4-6.
[4220] Chapter 12, paras. 1-8; Chapter 44(2).
[4221] Chapter 12, paras. 12-29.
[4222] Chapter 12, para. 16.
[4223] Chapter 12, paras. 12-14.
[4224] Chapter 12, para. 14.
[4225] Chapter 12, para. 16
[4226] Chapter 12, paras. 18-29.
[4227] Chapter 44(2), para. 13.
[4228] Chapter 44(4)(B), paras. 3-4.
[4229] Chapter 20, paras. 63-74; Chapter 44(4)(B), para. 4.
[4230] See Chapter 44(4)(B), paras. 7-8.
[4231] Chapter 45(1) and (2).
[4232] Chapter 44.
[4233] Pro 1440; Rod Sylvester-Evans, 22 June 2010, am, pp. 9ff.
[4234] 2nd edn, 1997; Rod Sylvester-Evans, 22 June 2010, am, p. 32
[4235] Rod Sylvester-Evans, 22 June 2010, am, pp. 1-2, 40-42; David Charters, 20 July 2010, am, pp. 99-100.
[4236] Rod Sylvester-Evans, 22 June 2010, am, p. 32.
[4237] ACOP, Pro 1440, para. 33.
[4238] Rod Sylvester-Evans, 22 June 2010, am, pp. 1-2
[4239] Rod Sylvester-Evans, 21 June 2010, pm, pp. 68-69.
[4240] Rod Sylvester-Evans, 21 June 2010, pm, pp. 67-68; 22 June 2010, am pp. 31-32.
[4241] Rod Sylvester-Evans, 22 June 2010, am, pp. 76-77.
[4242] Rod Sylvester-Evans, 21 June 2010, pm, p. 69.
[4243] Rod Sylvester-Evans, 22 June 2010, am, pp. 32, 35.
[4244] Rod Sylvester-Evans, 22 June 2010, am, p. 32
[4245] Rod Sylvester-Evans, 22 June 2010, am, pp. 70-74.
[4246] Thomas Balmer, 4 May 2010, am, p. 47
[4247] Thomas Balmer 4 May 2010, am, pp. 43-47.
[4248] See generally Chapter 18 above.
[4249] See paras. 15-17 below.
[4250] Chapter 18, paras. 5-13.
[4251] Chapter 18, paras. 14-15.
[4252] Chapter 18, paras. 21-22.
[4253] Chapter 20, para. 45.
[4254] Rod Sylvester-Evans, 22 June 2010, am, pp. 76-78; Anne Jarvie.
[4255] See Chapter above.
[4256] Thomas Balmer, 4 May 2010, am, p. 74; 6 May 2010, pm, pp. 23-24.
[4257] Thomas Balmer, 4 May 2010, am, p. 77.
[4258] Thomas Balmer, 7 May 2010, am, p. 70
[4259] Thomas Balmer, 7 May 2010, am, pp. 100-101
[4260] Thoma Balmer, 4 May 2010, am, p. 64.
[4261] Rod Sylvester-Evans, 22 June 2010, am, pp. 54-58, 60-61.
[4262] Cp Rod Sylvester-Evans, 22 June 2010, am, pp. 66-67.
[4263] Thomas Balmer, 5 May 2010, am, pp. 71-72.
[4264] Thomas Balmer, 5 May 2010, am, p. 72.
[4265] Rod Sylvester-Evans, 21 June 2010, pm, p. 71.
[4266] Rod Sylvester-Evans, 22 June 2010, am, pp. 18-19.
[4267] Rod Sylvester-Evans, 22 June 2010, am, pp. 21-22.
[4268] Rod Sylvester-Evans, 22 June 2010, am, pp. 22-23.
[4269] Rod Sylvester-Evans, 22 June 2010, am, pp. 23-25.
[4270] Rod Sylvester-Evans, 22 June 2010, am, pp. 26-27.
[4271] Rod Sylvester-Evans, 22 June 2010, am, p. 27.
[4272] Para. 37.
[4273] Rod Sylvester-Evans, 22 June 2010, am, pp. 27-28.
[4274] Thomas Balmer, 4 May 2010, am, pp. 53-54.
[4275] Thomas Balmer, 4 May 2010, pm, pp. 60-62.
[4276] Thomas Balmer, 5 May 2010, am, p. 111.
[4277] Thomas Balmer, 5 May 2010, am, pp. 107-112; 6 May 2010, am, p. 92.
[4278] Thomas Balmer, 4 May 2010, pm, pp. 39-41.
[4279] Thomas Balmer, 5 May 2010, am, p. 122.
[4280] Thomas Balmer, 29 April 2010, am, p. 89.
[4281] Thomas Balmer, 4 May 2010, pm, pp. 39-41.
[4282] Rod Sylvester-Evans, 22 June 2010, am, pp. 28-31.
[4283] William Dickie, 14 January 2010, pm, p. 8.
[4284] Chapter 6, paras 20-23.
[4285] Chapter 6, para. 23.
[4286] John Spencely, 23 July 2010, am, pp. 17-18.
[4287] John Spencely, 23 July 2010, am, p. 77.
[4288] John Spencely, 23 July 2010, am, p. 17.
[4289] William Dickie, 14 January 2010, am, pp. 172-174.
[4290] Chapter 6, para. 23.
[4291] John Spencely, 23 July 2010, am, pp. 18-19.
[4292] Chapter 6, paras. 40-41.
[4293] George Harvie, 29 January 2010, am, pp. 87-88; see also 2 February 2010, am, pp. 7-8, 105.
[4294] Chapter 6, para. 44.
[4295] Chapter 37.
[4296] Chapter 44(3)(F), para. 6.
[4297] Cf Colin Todd, 29 July 2010, am, pp21-22, on the historical reasons for the Health Boards assuming responsibility for regulation of fire safety;
[4298] Cf the definition of "authorised person" in regulation 1(2) of the 1990 Regulations;
[4299] Rod Sylvester Evans, 23 June 2010, pm, p41;
[4300] Rod Sylvester Evans, 23 June 2010, am, pp83-4;
[4301] Rod Sylvester Evans, 23 June 2010, am, p85;
[4302] Rod Sylvester Evans, 23 June 2010, am, pp87-88;
[4303] Rod Sylvester Evans, 23 June 2010, am, p89;
[4304] Rod Sylvester Evans, 23 June 2010, pm, pp38-39, 60-61;
[4305] Rod Sylvester Evans, 23 June 2010, am, pp94-95;
[4306] Thomas Lynch, 4 March 2010, am, pp87-88;
[4307] Thomas Lynch 4 March 2010, am, pp88-89; Lance Blair, 9 March 2010, am, pp103-104;
[4308] Colin Todd, 28 July 2010, am, pp55-57;
[4309] Anne Balmer, 15 July 2010, am, pp120-121; Thomas Balmer, 7 May 2010, pm, pp13, 19-21; 10 May 2010, am, p34;
[4310] David Purser, 15 June 2010, am, p80;
[4311] See chapters 44(3)(B) and 44(4)(B);
[4312] Production 1430;
[4313] Production 1428;
[4314] Regulation 5(c)(i) of the 1999 Regulations;
[4315] Production 1429;
[4316] John Russell, 9 August 2010, am, pp127-128;
[4317] John Russell, 9 August 2010, pm, p6;
[4318] John Russell, 9 August 2010, am, p130;
[4319] John Russell, 9 August 2010, am, pp131-133;
[4320] Production 1832, p20; section 10(1)(a); John Russell, 9 August 2010, am, pp138-139;
[4321] Production 1832, p21, section 10(2);
[4322] John Russell, 9 August 2010, am, pp141-144;
[4323] Production 2117, page 44;
[4324] Productions 1430; 1961; p1;
[4325] John Russell, 9 August 2010, pm, p7;
[4326] Production 1120;
[4327] John Russell, 9 August 2010, pm, p8;
[4328] John Russell, 9 August 2010, pm, pp10-11;
[4329] John Russell, 9 August 2010, pm, pp12-14;
[4330] John Russell, 9 August 2010, pm, p17;
[4331] John Russell, 9 August 2010, pm, pp24-25;
[4332] Scottish Ministers' First Inventory, items 1 and 2;
[4333] John Russell, 9 August 2009, pm, pp33-34;
[4334] John Russell, 9 August 2010, pm, pp37-39;
[4335] John Russell, 9 August 2010, pm, pp41-42;
[4336] John Russell, 9 August 2010, pm, pp56-58;
[4337] John Russell, 9 August 2010, pm, pp43-44;
[4338] John Russell, 9 August 2010, pm, p44;
[4339] John Russell, 9 August 2020, pm, pp44-45;
[4340] John Russell, 9 August 2010, pm, pp48-50;
[4341] Production 1120;
[4342] Letter by Marion Gunn, addressed to the Clerk to the Fire Board, the Chief Executive, Fife and Dumfries and Galloway Councils, and the Firemaster, dated 30th June 2000, paragraph 21;
[4343] John Russell, 9 August 2010, pm, pp63-64;
[4344] John Russell, 9 August 2010, pm, pp67-69;
[4345] John Russell, 9 August 2010, pm, pp64-65;
[4346] John Russell, 9 August 2010, pm, pp85-86;
[4347] Hugh Adie, 30th June 2010, am, pp1-2;
[4348] Hugh Adie, 29th June 2010, pm, p46;
[4349] Hugh Adie, 29th June 2010, pm, p69;
[4350] Hugh Adie, 29th June 2010, pm, p68;
[4351] Hugh Adie, 30th June 2010, am, pp20-22;
[4352] Hugh Adie, 30th June 2010, am, pp22-23;
[4353] Hugh Adie, 29 June 2010, pm, pp73-74;
[4354] Hugh Adie, 30 June 2010, pm, pp63-64;
[4355] Hugh Adie, 29 June 2010, pm, pp80-89;
[4356] Hugh Adie, 29 June 2010, pm, pp5-9
[4357] Hugh Adie, 29 June 2010, pm, pp15-18;
[4358] Hugh Adie, 29 June 2010, pm, p18;
[4359] Hugh Adie, 30 June 2010, am, pp43-45; pm, pp74-75;
[4360] Hugh Adie, 30 June 2010, am, p46;
[4361] Jeff Ord, 1 July 2010, pm, pp3-4;
[4362] Jeff Ord, 1 July 2010, pm, pp27-29;
[4363] Jeff Ord, 1 July 2010, pm, p30;
[4364] Jeff Ord, 1 July 2010, pm, p66;
[4365] Jeff Ord, 1 July 2010, pm, pp34-35;
[4366] Jeff Ord, 1 July 2010, pm, pp72-74; 2 July 2010, am, pp3, 20-22;
[4367] Jeff Ord, 2 July 2010, am, p13;
[4368] Jeff Ord, 1 July 2010, pm, p57;
[4369] Jeff Ord, 2 July 2010, am, pp15-17;
[4370] Jeff Ord, 2 July 2010, am, pp33-38; Thomas McNeilly, 25 January 2010, am, pp79-88;
[4371] Jeff Ord, 2 July 2010, am, p38;
[4372] Scottish Ministers' First Inventory, Item 1, page 2; Jeff Ord, 2 July 2010, am, pp152-156; cf Letter by Mrs Gunn dated 30th June 2000, p5;
[4373] Jeff Ord, 2 July 2010, am, pp156-157;
[4374] Jeff Ord, 2 July 2010, am, p159;
[4375] Brian Sweeney, 12 July 2010, am, pp1-7
[4376] Brian Sweeney, 12 July 2010, am, pp139-140;
[4377] Brian Sweeney, 12 July 2010, am, p121;
[4378] Brian Sweeney, 12 July 2010, am, p121;
[4379] Brian Sweeney, 12 July 2010, am, pp122-124;
[4380] Production 1430; Brian Sweeney, 12 July 2010, am, p125;
[4381] Brian Sweeney, 12 July 2010, am, p126;
[4382] Brian Sweeney, 12 July 2010, am, pp127-128;
[4383] Brian Sweeney, 12 July 2010, am, pp128-130;
[4384] Brian Sweeney, 12 July 2010, am, p134;
[4385] Brian Sweeney, 12 July 2010, am, pp134-135;
[4386] Brian Sweeney, 12 July 2010, am, pp138-139;
[4387] Brian Sweeney, 12 July 2010, am, pp141-142;
[4388] Brian Sweeney, 12 July 2010, am, pp142;
[4389] Brian Sweeney, 12 July 2010, am, pp146-149;
[4390] Brian Sweeney, 12 July 2010, am, pp154-157;
[4391] Brian Sweeney, 12 July 2010, pm, pp4-8
[4392] Brian Sweeney, 12 July 2010, pm, pp6-8;
[4393] Brian Sweeney, 12 July 2010, pm, pp14-15;
[4394] Brian Sweeney, 12 July 2010, pm, pp15-20;
[4395] Brian Sweeney, 12 July 2010, pm, pp19-20;
[4396] ELlizabeth Norton, 26 April 2010, am, pp70-71;
[4397] Charles Stewart, 12 August 2010, am, pp11-12;
[4398] Charles Stewart, 12 August 2010, am, pp13-14;
[4399] Charles Stewart, 12 August 2010, am, p15;
[4400] Charles Stewart, 12 August 2010, am, p16;
[4401] Charles Stewart, 12 August 2010, am, pp17-19;
[4402] Charles Stewart, 12 August 2010, am, p19;
[4403] Charles Stewart, 12 August 2010, am, pp25-26;
[4404] Charles Stewart, 12 August 2010, am, pp26-27;
[4405] Charles Stewart, 12 August 2010, am, pp27-38;
[4406] Charles Stewart, 12 August 2010, am, pp54-55;
[4407] Colin Todd, 29 July 2010, am, pp21-22;
[4408] Charles Stewart, 12 August 2010, am, pp38-41;
[4409] Charles Stewart, 12 August 2010, am, pp42-48;
[4410] Charles Stewart, 12 August 2010, am, pp49-50;
[4411] Charles Stewart, 12 August 2010, am, pp57-61;
[4412] Charles Stewart, 12 August 2010, am, pp64-66;
[4413] Charles Stewart, 12 August 2010, am, pp73-74;
[4414] Charles Stewart, 12 August 2010, am, p75;
[4415] Alan Sheach, 28 June 2010, pm, pp44-48;
[4416] Alan Sheach, 28 June 2010, pm, pp52-53;
[4417] Alan Sheach, 28 June 2010, pm, p53;
[4418] Alan Sheach, 28 June 2010, pm, p54;
[4419]Alan Sheach, 28 June 2010, pm, pp55-66;
[4420] Alan Sheach, 28 June 2010, pm, p57;
[4421] Alan Sheach, 28 June 2010, pm, p58;
[4422] Alan Sheach, 28 June 2010, pm, p59;
[4423] Alan Sheach, 28 June 2010, pm, p64;
[4424] Alan Sheach, 28 June 2010, pm, p65;
[4425] Alan Sheach, 28 June 2010, pm, p72;
[4426] Alan Sheach, 28 June 2010, pm, 72-73;
[4427] Alan Sheach, 29 June 2010, am, pp131-133
[4428] Alan Sheach, 28 June 2010, pm, pp90-92;
[4429] Colin Todd, 28 July 2010, am, p58ff.;
[4430] Colin Todd, 28 July 2010, am, p58;
[4431] Colin Todd, 28 July 2010, am, pp58-59;
[4432] Colin Todd, 28 July 2010, am, pp64-65;
[4433] Colin Todd, 28 July 2010, am, pp59-60;
[4434] ColinTodd, 28 July 2010, am, pp67-69;
[4435] Production 2101;
[4436] See Item 2, First Inventory for Scottish Ministers;
[4437] Colin Todd, 28 July 2010, am, pp70-76;
[4438] Colin Todd, 28 July 2010, am, pp79-80;
[4439] Colin Todd, 28 July 2010, am, pp80-81;
[4440] Colin Todd, 28 July 2010, am, pp81-82;
[4441] Colin Todd, 28 July 2010, am, p82;
[4442] Sir Graham Meldrum, 6 August 2010, am, p120;
[4443] Sir Graham Meldrum, 6 August 2010, am, p121;
[4444] Sir Graham Meldrum, 6 August 2010, am, pp126-127;
[4445] Brian Sweeney, 13 July 2010, am, pp31-32;
[4446] See eg. Sir Graham Meldrum, 6 August 2010, am, p163;
[4447] For which see Health and Safety at Work etc. Act 1974, ss18-20; Production 1833,, pp
[4448] Regulation 9(1) of the 1997 Regulations;,
[4449] Fire Precautions (Workplace) Regulations 1997, Part IV, regulation 9(2); Production 1430;
[4450] Ibid., regulation 10(1);
[4451] See para. 7, supra.;
[4452] See also Colin Todd, 29 July 2010, pm, pp31-32;
[4453] Official Journal No. L183/1, 29.6.89, p1, known as the Framework Directive;
[4454] Official Journal, No. L 393/13, 30.12.89, p1, known as the Workplace Directive;
[4455] Explanatory Note to the 1997 Regulations; Production 1430, p14; Framework Directive, article 1(3); Workplace Directive, article 1(3);
[4456] See chapter 27;
[4457] See para.124 supra.;
[4458] Jacqueline Roberts, 1 June 2010, pm, pp10-11;
[4459] See evidence of Alan Sheach, referred to in chapter 46(1)
[4460] Jacqueline Roberts, 1 June 2010, pm, pp19-23;
[4461] Ronald Hill, 25 June 2010, pm, pp6-8;
[4462] Ronald Hill, 25 June 2010, am, pp59-60;
[4463] Ronald Hill, 25 June 2010, am, pp62-63;
[4464] Annabel Fowles, 10 June, 2010, pm, pp26-27;
[4465] Annabel Fowles, 10 June 2010, pm, pp28-29;
[4466] Elizabeth Norton, 26 April 2010, am, pp64-65;
[4467] Morag McHaffie, 8 March 2010, am, pp37-38;
[4468] Marie Paterson, 13 May 2010, am, p63;
[4469] Jeff Ord, 2 July 2010, am, pp46-47;
[4470] Jeff Ord, 1 July 2010, pm, pp11-12;
[4471] Jeff Ord, 1 July 2010, pm, pp13-14;
[4472] Jeff Ord, 2 July 2010, am, pp49-51;
[4473] Hugh Adie, 30 June 2010, am, p54;
[4474] Hugh Adie, 30 June 2010, am, pp1-2;
[4475] Hugh Adie, 30 June 2010, am, pp53-54;
[4476] Hugh Adie, 30 June 2010, am, p54;
[4477] Hugh Adie, 30 June 2010, pm, pp92-93;
[4478] Hugh Adie, 30 June 2010, pm, p93;
[4479] Hugh Adie, 30 June 2010, pm, pp94-95;
[4480] Jacqueline Roberts, 2 June 2010, am, pp42-43;
[4481] John Russell, 9 August 2010, pm, pp70-71;
[4482] Jeff Ord, 1 July 2010, pm, pp20-22;
[4483] Elizabeth Norton, 26 April 2010, am, pp71-72;
[4484] Jacqueline Roberts, 1 June 2010, pm, pp13-14;
[4485] John Spencely, 23 July 2010, am, p. 47-54.
[4486] John Spencely, 23 July 2010, am, pp. 86-89
[4487] Thomas Sorbie, 7 June 2010, am, pp. 119-120, 134-146, pm, pp. 31-34.
[4488] John Spencely, 23 July 2010, am, pp. 89-90.
[4489] Hugh Gibb, 3 February 2010, pm, p. 58.
[4490] Hugh Gibb, 3 February 2010, pm, p. 60.
[4491] Hugh Gibb, 3 February 2010, pm, p.64.
[4492] Thomas Sorbie, 7 June 2010, am, pp. 129-130.
[4493] Thomas Sorbie, 7 June 2010, am, pp. 131-133.
[4494] Thomas Sorbie.
[4495] Thomas Sorbie, 7 June 2010, pm, pp. 25-26.
[4496] Thomas Sorbie, 7 June 2010, pm, pp. 34-43.
[4497] Colin Todd, 29 July 2010, am, pp. 91-100.
[4498] Colin Todd, 29 July 2010, am, p. 100.
[4499] Colin Todd, 27 July 2010, pm, pp. 82-83
[4500] Colin Todd, 28 July 2010, am, pp. 23-24.
[4501] Colin Todd, 28 July 2010, pm, pp. 40-44
[4502] Colin Todd, 27 July 2010, pm, pp. 83-86; 28 July 2010, am, pp. 1-23.
[4503] Colin Todd, 28 July 2010, pm, pp. 24-26
[4504] Chapter 46(5)(a) below.
[4505] Chapter 46(6)(a) below.
[4506] Chap[ter 46(6)(b) below.
[4507] Chapter 46(6)(c) below.
[4508] Chapter 46(6)(d) below.
[4509] Chapter 46(6)(e) below.
[4510] Chapter 46(6)()f) below.
[4511] Annabel Fowles, 10 June 2010, pm, pp67, 99;
[4512] Production 1381;
[4513] Annabel Fowles, 30 June 2010, pm, 67-69;
[4514] Graeme Fraser, 29 June 2010, pm, pp12-14; Fifth Inventory for Care Commission, item 2;
[4515] Graeme Fraser, 29 June 2010, pm, pp15-17;
[4516] Graeme Fraser, 29 June 2010, pm, pp19-20;
[4517] Graeme Fraser, 29 June 2010, pm, pp28-32;
[4518] Alan Sheach, 28 June 2010, pm, pp92-93;
[4519] Ronald Hill, 25 June 2010, am, pp62-63;
[4520] Alan Sheach, 28 June 2010, pm, pp92-93;
[4521] Alan Sheach, 28 June 2010, pm, pp93-94;
[4522] Alan Sheach, 28 June 2010, pm, pp94-95;
[4523] Alan Sheach, 29 June 2010, am, pp37-38;
[4524] Alan Sheach, 29 June 2010, am, pp38-39; Production 1382;
[4525] Alan Sheach, 29 June 2010, am, p39;
[4526] Alan Sheach, 29 June 2010, am, pp39-41;
[4527] Alan Sheach, 29 June 2010, am, pp41-42;
[4528] Alan Sheach, 29 June 2010, am, pp53-54;
[4529] Alan Sheach, 29 June 2010, am, pp55-57;
[4530] Alan Sheach, 29 June 2010, am, pp57-59, 88-89;
[4531] Alan Sheach, 29 June 2010, am, p60;
[4532] Alan Sheach, 29 June 2010, am, pp89-90; Production 1380;
[4533] Alan Sheach, 29 June 2010, am, p90;
[4534] Jacqueline Roberts, 1 June 2010, pm, pp12-13; Production 1380;
[4535] Jacqueline Roberts, 1 June 2010, pm, pp13-14;
[4536] Alan Sheach, 29 June 2010, am, p95;
[4537] Alan Sheach, 29 June 2010, am, pp96-98;
[4538] Brian Sweeney, 12 July 2010, pm, pp39-41;
[4539] Alan Sheach, 29 June 2010, am, p106;
[4540] Production 1408, p23;
[4541] Sir Graham Meldrum, 6 August 2010, am, pp76ff.
[4542] See chapter 25; Section 1(1)(d) and risk catagorisation;
[4543] Sir Graham Meldrum, 6 August 2010, am, pp77-78; 80; Production 1408, p23, paras. 1-2, 4;
[4544] Sir Graham Meldrum, 6 August 2010, am, pp78-79; Production 1408, p23, para. 3;
[4545] Sir Graham Meldrum, 6 August 2010, am, pp80-81; Production 1408, p23, para. 5;
[4546] Sir Graham Meldrum, 6 August 2010, am, pp81-88; Production 1408, p23, para. 7;
[4547] Sir Graham Meldrum, 6 August 2010, am, p88; Production 1408, p23, para. 8;
[4548] Production 2003;
[4549] Brian Sweeney, 13 July 2010, pp13-14;
[4550] Brian Sweeney, 13 July 2010, am, p13; Sir Graham Meldrum, 6 August 2010, am, p77;
[4551] Brian Sweeney, 13 July 2010, am, p15;
[4552] Production 2003, p1, section 2;
[4553] Production 2003, p1, para. 2.1;
[4554] Brian Sweeney, 13 July 2010, am, p21p
[4555] Brian Sweeney, 13 July 2010, am, pp28-30;
[4556] Brian Sweeney, 13 July 2010, am, p30;
[4557] Production 2003, p3, para. 2.4.1; Brian Sweeney, 13 July 2010, am, pp3-4;
[4558] Brian Sweeney, 13 July 2010, am, p4;
[4559] Brian Sweeney, 13 July 2010, am, pp5-7, 33-34;
[4560] Brian Sweeney, 13 July 2010, am, pp37-38; Production 2003, para. 3.1;
[4561] Brian Sweeney, 13 July 2010, am, pp38-43;
[4562] Brian Sweeney, 13 July 2010, am, pp45-46;
[4563] Brian Sweeney, 13 July 2010, am, p47; 54-56;
[4564] Production 2003, section 4, para. 3;
[4565] Brian Sweeney, 13 July 2010, am, pp71-72;
[4566] Brian Sweeney, 13 July 2010, am, pp7-12, 163-169; see Production 2083, p25;
[4567] Brian Sweeney, 13 July 2010, am, pp75-76;
[4568] Sir Graham Meldrum, 6 August 2010, pm, p82;
[4569] Production 2079;
[4570] Sir Graham Meldrum, 6 August 2010, am, pp101-102;
[4571] Sir Graham Meldrum, 6 August 2010, am, pp95-98;
[4572] Production 1943;
[4573] Production 2078, p3; Sir Graham Meldrum, 6 August 2010, am, pp104-106;
[4574] Brian Sweeney, 13 July 2010, pm, pp4-11;
[4575] Brian Sweeney, 13 July 2010, am, pp158-161;
[4576] Brian Sweeney, 12 July 2010, pm, pp52-55;
[4577] Joanne MacDougall, 28 June 2010, am, pp1-2, 4-5;
[4578] Joanne MacDougall, 28 June 2010, am, p2;
[4579] Joanne MacDougall, 28 June 2010, am, p5;
[4580] Joanne MacDougall, 28 June 2010, am, p6; Colin Todd, 28 July 2010, am, pp59-60;
[4581] Joanne MacDougall, 28 June 2010, am, p7;
[4582] Joanne MacDougall, 28 June 2010, am, pp7-8;
[4583] Joanne MacDougall, 28 June 2010, am, p68;
[4584] Joanne MacDougall, 28 June 2010, am, p9;
[4585] Joanne MacDougall, 28 June 2010, am, p60;
[4586] Brian Sweeney, 12 July 2010, pm, pp59-60;
[4587] Joanne MacDougall, 28 June 2010, am, p10;
[4588] 2005 Act, section 6;
[4589] Production 2029, p1; regulation 2;
[4590] Production 2019; Joanne MacDougall, 28 June 2010, am, pp29-30;
[4591] Joanne MacDougall, 28 June 2010, am, p31;
[4592] Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No.2) Order 2006, schedule 2; Production 1879;
[4593] As defined in section 79(1) of the 2005 Act supra.
[4594] Regulation 20(2)(b);
[4595] Joanne MacDougall, 28 June 2010, am, p39;
[4596] Joanne MacDougall, 28 June 2010, am, pp15-16;
[4597] Joanne MacDougall, 28 June 2010, am, pp16-20; cf Production 1835, section 25(3);
[4598] Production 1942; Joanne MacDougall, 28 June 2010, am, pp40-43;
[4599] 2005 Act, section 61(2); Joanne MacDougall, 28 June 2010, am, p44; Production 1942, para. 2;
[4600] Joanne MacDougall, 28 June 2010, am, pp45-48; Production 1942, paras. 8-12;
[4601] Joanne MacDougall, 28 June 2010, am, pp51-55;
[4602] Joanne MacDougall, 28 June 2010, am, pp55-57;
[4603] Joanne MacDougall, 28 June 2010, am, pp57-58; cf section 1(1)(f) of the Fire Services Act 1947;
[4604] Joanne MacDougall, 28 June 2010, am, p62;
[4605] Production 1939
[4606] Joanne MacDougall, 28 June 2010, am, pp76-77;
[4607] Joanne MacDougall, 28 June 2010, am, pp68-70;
[4608] Joanne MacDougall, 28 June 2010, am, pp79-80;
[4609] Joanne MacDougall, 28 June 2010, am, pp84-85;
[4610] Joanne MacDougall, 28 June 2010, am, pp71-72;
[4611] Joanne MacDougall, 28 June 2010, am, pp85-86;
[4612] Joanne MacDougall, 28 June 2010, am, pp86-87;
[4613] Joanne MacDougall, 28 June 2010, am, p72;
[4614] Joanne MacDougall, 28 June 2010, am, pp100-101;
[4615] Production 1943;
[4616] Joanne MacDougall, 28 June 2010, am, pp109-110;
[4617] Joanne MacDougall, 28 June 2010, pm, pp38-41;
[4618] Colin Todd, 27 July 2010, am, pp145-146;
[4619] Joanne MacDougall, 28 June 2010, pm, pp35-36;
[4620] Joanne MacDougall, 28 June 2010, am, pp121-122;
[4621] Joanne MacDougall, 28 June 2010, am, pp126-128;
[4622] Joanne MacDougall, 28 June 2010, am, pp130-131;
[4623] Production 1871;
[4624] Production 1879, and see Joanne MacDougall, 28 June 2010, am, pp133-136;
[4625] Joanne MacDougall, 28 June 2010, am, p132;
[4626] Production 1728, p22; Joanne MacDougall, 28 June 2010, am, p140;
[4627] Joanne MacDougall, 28 June 2010, am, pp140-142;
[4628] Joanne MacDougall, 28 June 2010, am, pp143-145;
[4629] Joanne MacDougall, 28 June 2010, pm, pp30-31;
[4630] Brian Sweeney, 12 July 2010, pm, p64;
[4631] Brian Sweeney, 12 July 2010, pm, p65;
[4632] Brian Sweeney, 12 July 2010, pm, p71;
[4633] Production 1942, para. 12;
[4634] Brian Sweeney, 12 July 2010, pm, pp74-75;
[4635] Brian Sweeney, 12 July 2010, pm, pp76-77;
[4636] Brian Sweeney, 12 July 2010, pm,p79;
[4637] Brian Sweeney, 12 July 2010, pm, p80;
[4638] Brian Sweeney, 12 July 2010, pm, pp81-82;
[4639] Brian Sweeney, 12 July 2010, pm, p83;
[4640] Brian Sweeney, 12 July 2010, pm, pp83-84;
[4641] Brian Sweeney, 12 July 2010, pm, pp93-94;
[4642] Brian Sweeney, 12 July 2010, pm, p94;
[4643] Production 1879, regulation 6;
[4644] Ronald Hill, 25 June 2010, am, pp78-84;
[4645] Roanld Hill, 25 June 2010, am, p121;
[4646] Ronald Hill, 25 June 2010, am, pp115-117, 122-124;
[4647] Production 1944;
[4648] Production 1738; Ronald Hill, 25 June 2010, am, pp85-90; Jacqueline Roberts, 2 June 2010, am, pp25-33;
[4649] Jacqueline Roberts, 2 June 2010, am, pp33-34;
[4650] First Inventory for Care Commission, Item 3; Ronald Hill, 25 June 2010, am, pp100-101;
[4651] Ronald Hill, 25 June 2010, am, pp103-109;
[4652] CCI1.3, p5, para. 4;
[4653] Ronald Hill, 25 June 2010, pp113-114;
[4654] First Inventory for Care Commission, Item 3, page 13;
[4655] Jacqueline Roberts, 2 June 2010, am, pp113-114;
[4656] Third Inventory for Care Commission, Item 2;
[4657] Ronald Hill, 2 June 2010, am, pp120, 125-134;
[4658] Ronald Hill, 25 June 2010, pp113-114;
[4659] Production 1942; Joanne MacDougall, 28 June 2010, am, pp45-48
[4660] Brian Sweeney, 12 July 2010, pm, p65;
[4661] Production 1942;
[4662] Jacqueline Roberts, 1 June 2010, am, pp26-
[4663] Jacqueline Roberts, 2 June 2010, am, pp116-117;
[4664] Jacqueline Roberts, 2 June 2010, am, p115;
[4665] Jacqueline Roberts, 2 June 2010, am, p119;
[4666] Jacqueline Roberts, 2 June 2010, am, pp120-122;
[4667] Jacqueline Roberts, 2 June 2010, am, p123; Ronald Hill, 25 June 2010, am, p155;
[4668] See chapter 46(4);
[4669] Thomas Sorbie, 8 June 2010, am, pp. 64-68, 82-83.
[4670] Thomas Sorbie, 7 June 2010, am, pp. 39-40.
[4671] Pro 1861.
[4672] Para. 2.15.
[4673] Thomas Sorbie, 8 June 2010, am, pp. 51-52, 56-57
[4674] Pro 1906, p. 205 ff; Thomas Sorbie, 8 June 2010, am, pp. 71-.
[4675] Thomas Balmer, 10 May 2010, pm, pp. 41-42.
[4676] Thomas Balmer, 10 May 2010, pm, p. 42.
[4677] Thomas Balmer, 12 May 2010, pm, p. 14
[4678] Thomas Balmer, 12 May 2010, pm, pp. 15-16.
[4679] Thomas Balmer, 10 May 2010 pm, pp. 43-44.
[4680] Thomas Balmer, 10 May 2010, pm, pp. 44-46.
[4681] Thomas Balmer, 10 May 2010, pm, p. 46.
[4682] Thomas Balmer, 12 May 2010, pm, pp. 3-4.
[4683] Thomas Balmer, 12 May 2010, pm, pp. 9-10.
[4684] Thomas Balmer, 12 May 2010, pm, pp. 12-13.
[4685] Thomas Balmer, 12 May 2010, pm, p. 13.
[4686] Thomas Balmer, 12 May 2010, pm, pp. 10-11.
[4687] Thomas Balmer, 10 May 2010, pm, pp. 51-52; 12 May 2010, pm, pp. 8-9.
[4688] Thomas Balmer, 12 May 2010, pm, pp. 7-8.
[4689] Thomas Balmer, 12 May 2010, pm, pp. 16-17.
[4690] Chapter 46(4).
[4691] Chapter 44(4)(A), para. 4.
[4692] Colin Todd, 29 July 2010, am, p. 107.
[4693] Colin Todd, 28 July 2010, am, p. 142.
[4694] Colin Todd, 28 July 2010, am, pp. 143-
[4695] Pro 1943, paras. 75-84.
[4696] Colin Todd, 29 July 2010, am, pp. 110-114.
[4697] Colin Todd, 29 July 2010, am, p. 124.
[4698] Colin Todd, 29 July 2010, am, pp. 114-116.
[4699] Colin Todd, 29 July 2010, am, pp. 124-127.
[4700] Colin Todd, 29 July 2010, am, pp. 128-129.
[4701] Colin Todd, 28 July 2010, pm, pp. 14-18.
[4702] Colin Todd, 29 July 2010, am, pp. 129-130.
[4703] Chapter 40(5).
[4704] Colin Todd, 29 July 2010, am, pp. 130-132.
[4705] Colin Todd, 28 July 2010, pm, p. 37.
[4706][4706] Transcript 06.08.10 PM Page 13, Line 6
[4707] B v Murray 2005 SLT 982 at 987 B (Outer House); 2007 S.C. 982 (Inner House); and 2008 SC (HL) 146.
[4708] Transcript 06.08.10 PM Pages 29 and 30.
[4709] Transcript 08.01.10 AM Pages 24 and 25.
[4710] Transcript 06.08.10 PM page 30, Lines 3-10.
[4711] Crown Production 817, Page 140 and Thomas Balmer's evidence 11.05,10 Pagee 22 lines 14-17
[4712] Thomas Balmer 11.05 10 Pages 12-14
[4713] (Crown Production 309, p10; Thomas Balmer 11.05.10, am, Pages 15-19)
[4714] Crown Production 807, p8, Thomas Balmer 11.05.10, AM Pages 9-11 )
[4715] (Thomas Balmer 11.0510, AM Pages 21-24).
[4716] Brian Sweeney 13.7.10 PM Page 72 lines 2-13 and Page 74 lines 12-20
[4717] Crown production 1094 Page 5
[4718] Eg McNeilly Transcript 22.01.10 PM Page 85 at lines 11-20
[4719] Transcript 18.01.10 AM Page 167 Lines 8-11
[4720] See generally 18.01.10 AM Pages 126-129
[4721] Transcript Mr T Balmer 11.05.10 AM pages 43-45
[4722] (as outlined in paragraph 5 of the Crown's submission). And also at Transcript 29.04.10 PM page 45 lines 19-24 where reference was made to whether the Nurse in Charge was "comfortable" or "concerned" and at page 46 lines 4-10 where a distinction was drawn between night and dayshift.
[4723] See generally transcript 11.05.10 AM page 53 line 16 - page 54 line 14
[4724] See Paragraph 21 of Crown Submission and Transcript 11.05.10 AM page 74 line 20 to page 78 line 16
[4725] Allison Cumming Transcript 20.11.09 AM page 125 and Ms Meany 23.02.10 PM page 85 lines 1-6
[4726] Crown Production 817, Page 140 and Thomas Balmer's evidence 11.05.10 Page 22 lines 14-17
[4727] See Mr Balmer's evidence in Transcript 11.05.10 AM page 6 Line 22 to Page 9 Line 13
[4728] Crown Production 309, page 80 and T Balmer Transcript 11.05.10 AM pages 12-14
[4729] Transcript 06.08.10 AM pages 154-6
[4730] Transcript 08.12.09 AM page 77 lines 1 to 5 and page 78 lines 4/5
[4731] Transcript 08.12.09 AM page 81 lines 15 to page 82 line 4
[4732] Transcript 08.12.09 AM lines 9 to 15
[4733] Transcript 08.12.09 AM page 89 line 6
[4734] Transcript 05.02.10 AM page 56
[4735] Transcript 05.02.10 AM page 55 lines 13 and 14
[4736] Crown Production 213 page 4
[4737] Mr Lynch Transcript 05.03.10 All pages 53-56
[4738] Mr Sheach Transcript 29.06.10 AM page 131
[4739] See generally evidence of Jeff Ord (Transcripts 1.07.10 PM & 2.07.10 PM)
[4740] Transcript 13.05.10 PM page 68 line 3
[4741] Mr Caldwell the driver of the Bellshill appliance said "That's confusion because you're looking for Rosepark Gardens. You wouldn't turn into Rosepark Avenue if you're looking for Rosepark Gardens". Transcript 08.12.09 AM Page 67 lines 4-9.
[4742] See report by Sir Graham Meldrum Crown Production 2113 Section 2.1
[4743] Transcript 12.01.10 AM page 20 lines 13, 14
[4744] Transcript 12.01.10 AM page 22/3
[4745] Transcript 08.12.09 AM Page 73 lines 5-16
[4746] Transcript 06.08.10 AM Page 154 lines 17-21
[4747] Transcript 06.08.10 AM Page 154 lines 6-11
[4748] Transcript 11.12.09 PM Page 51 lines 9-17
[4749] Transcript 06.08.10 AM page 40 line 22
[4750] Transcript 06.08.10 PM page 29 line 15
[4751] Transcript 06.08.10 PM Page 30 lines 3-10
[4752] Transcript 06.08.10 PM Page 30 lines 11-16
[4753] Transcript 13.07.10 Page 58 line 12 to Page 62 line 12.
[4754] Transcript. 14.12.09 PM Pages 59 line 13 to Page 61 line 16
[4755] Transcript 08.12.09 AM pages 67/68
[4756] Transcript 12.01.10 AM page 25 lines 4 to 10
[4757] Transcript 05.02.10 AM page 52 lines 4 to 7
[4758] Transcript 08.01.10 AM pages 3/4
[4759] Transcript 12.01.10 AM page 53 lines 22 to 24
[4760] Crown Production 1405
[4761] Transcript 06.08.10 AM page 161
[4762] Transcript 06.08.10 AM page 168
[4763] Transcript 06.08.10 AM page 169
[4764] Brian Sweeney 13.07.10 pages 3 and 4
[4765] Transcript 16.06.10 Professor Purser page 42/43
[4766] Transcript 16.06.10 AM page 79
[4767] Production 2075
[4768] Transcript 09.08.10
[4769] Transcript 09.08.10 AM page 52 lines 1 to 6
[4770] Transcript 09.08.10 PM page 54 lines 1 to 14
[4771] Transcript 09.08.10 pages 57 to 61
[4772] Transcript 09.08.10 AM page 64 lines 3 to 9
[4773] Transcript 11.01.10 PM pages 86-92
[4774] Transcript 11.01.10 PM pages 106-107
[4775] Sir Graham Meldrum's Report (Crown Production 1408 pages 16 and 19.
[4776] Transcript 06.08.10 PM Page 16
[4777] Transcript 06.08.10 PM Page 52 lines 5-14
[4778] Production 1408 Pages 18 and 19
[4779] Transcript 13.07.10 PM Pages 56 - 80.
[4780] Transcript 30:06:10 AM pages 53 & 53
[4781] Transcript 30:06:10 AM page 56
[4782] Transcript 30.06.10 AM pages 52 & 53
[4783]1976 c. 14
[4784]SI 1977/191
[4785]Fenton v J. Thorley & Co. Ltd. [1903] AC 443, 449 per Lord Macnaghten. Clover, Clayton & Co. Ltd. v Hughes [1910] AC 242, 256 per Lord Collins
[4786]Reg. v National Insurance Commissioners, Ex parte Hudson [1972] A.C. 944, at page 1008G
[4787]Chief Adjudication Officer (Scotland) v Faulds [2000] UKHL 26
[4788] Crown Production 818, p133 (electronic), 128 (paper). The reference in paragraph 5 to a "single storey property" is accepted to be erroneous.
[4789] Crown Production 818, p.40
[4790] Ibid., p.39
[4791] Ibid., p 80 (electronic), 77 (paper)
[4792] Ibid, p. 233 (electronic), 228 (paper)
[4793] Morag McHaffie, 8th March 2010 am, pp 47-48
[4794] Morag McHaffie, 8th March 2010 am, pp 58-60
[4795] Morag McHaffie, 8th March 2010 am, pp 120-121
[4796] Alison Cumming, 20th November 2009 am, pp146-147
[4797] Crown Production 1737
[4798] Mala Thomson, 22nd April 2010 am, pp 107-109
[4799] Crown Production 1737
[4800] Crown Production 1871 (for which, see Chapter 22C)
[4801] Note: When referring to the role of Sadie Meany in respect of Care Commission inspections, The Commission will use the term "manager" as specified in Regulation 7 of the 2002 Regulations (Crown Production 1871). Where reference is made in these submissions to Miss Meany's role as an employee within Rosepark, and in respect of matters prior to 1st April 2002, the term "matron" will be used.
[4802] Crown Production 818, pp 7-32
[4803] Crown Production 216
[4804] Crown production 1835
[4805] Evidence of Sarah Meany, 23rd February 2010 am, pp 56-59, 24th February 2010 pm, pp.27-28
[4806] Crown Production 656
[4807] Crown Production 818, p.58, Q.15
[4808] Ibid., p59, Q.25
[4809] Ibid., p 238-239 (paper), 244-245 (electronic)
[4810] Crown Production 1899
[4811] Crown Production 213
[4812] Crown Production 1871
[4813] Crown Production 1383
[4814] Details of the committee's membership at Crown Production 1385, Appendix A pp94-95
[4815] Crown Production 1385
[4816] Crown Production 1737
[4817] Crown Production 1835
[4818] Crown Production 1871
[4819] See Crown Production 818, pp 259-263 (electronic), pp 253-257 (paper)
[4820] Liz Norton, 26th April 2010 am, pp 17-20
[4821] See Crown Production 818, p244 (electronic), 238 (paper)
[4822] Crown Production 1871
[4823] Jacqueline Roberts, 1st June 2010 am, p. 124
[4824] Crown production 216
[4825] Crown Production 27
[4826] Crown Production 583
[4827] Crown Production 221
[4828] Ibid, Firemaster's Foreword, p.7
[4829] Morag McHaffie, 8th March 2010 am, p.106-107
[4830] Morag McHaffie. 9th March 2010 am, p. 40
[4831] Crown Production 180
[4832] Crown Production 1871
[4833] Crown Production 1737, p.22
[4834] Crown Production 1120
[4835] Morag McHaffie, 8th March 2010, pm, p.27
[4836] Second Inventory of Production for Care Commission, Number 5
[4837] Crown Production 1434, p.10 (electronic), p.9 (paper), paragraph 1.12
[4838] Crown Production 334H, Crown Production 656
[4839] Crown Production 1871, Regulation of Care (Requirements as to Care Services) (S) Regulations 2002, Reg. 19 (3) (e)
[4840] Crown Production 1440.
[4841] Brian Sweeney, 12 July 2010, am, p 121;
[4842] Ronald Hill, 25 June 2010, pp113-114;
[4843] Brian Sweeney, 12 July 2010, pm, p65;
[4844] Crown Production 1942
[4845] Ronald Hill, 25 June 2010, pp113-114;
[4846] Brian Sweeney, 12 July 2010, pm, p65;
[4847] Crown Production 1942
[4848] The Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No.2) Order 2006, schedule 1, para. 6; Production 1879;
[4849] 2002 Regulations, reg. 19(3)(b)(c) and (e)
[4850] Alan Sheach, 28 June 2010, pm, p64;
[4851] Jeffrey Ord, 1st July 2010 pm, pp 11-12
[4852] Jeffrey Ord, 2nd July 2010 pm, pp 20-24
[4853] Sadie Meany, 24th February 2010 pm, pp 29-33
[4854] Sadie Meany, 24th February 2010 pm, p 28
[4855] The existing standards will continue and will be used by SCSWIS. There will be a "rolling" programme of revision, but it is not intended that the inception of SCSWIS will trigger an immediate review of all National Care Standards.
[4856] Hugh Adie, 30 June 2010, pm, pp 92-93;
[4857] Hugh Adie, 30 June 2010, pm, p 93;
[4858] Hugh Adie, 30 June 2010, pm, pp 94-95;
[4859] Hugh Adie, 30 June 2010, am, p 54;
[4860] Jacqueline Roberts, 1 June 2010, pm, pp 19-23;
[4861] Ronald Hill, 25 June 2010, am, pp 62-63;
[4862] Alan Sheach, 28 June 2010, pm, pp 92-93;
[4863] The Memorandum for Strathclyde forms Crown Production 1380
[4864] Alan Sheach, 29 June 2010, am, p 90;
[4865] Alan Sheach, 29 June 2010, am, pp 38-39; Production 1382;
[4866] Alan Sheach, 29 June 2010, am, pp 55-57;
[4867] Graeme Fraser, 29 June 2010, pm, pp 28-32;
[4868] Crown Production 1939
[4869] Crown Production 1871
[4870] Crown Production 1879
[4871] First Inventory for Care Commission, Item 3; Ronald Hill, 25 June 2010, am, pp100-101;
[4872] Ronald Hill, 25 June 2010, am, pp115-117, 122-124;
[4873] Jacqueline Roberts, 2 June 2010, am, p115;
[4874] Jacqueline Roberts, 2 June 2010, am, pp120-122;
[4875] Brian Sweeney, 13th July 2010 pm, pp 80-83
[4876] Elizabeth Norton, 26 April 2010, am, pp57-61; Jacqueline Roberts, 2nd June 2010, am, pp48-49;
[4877] Hugh Gibb - 3 February p.m. page 57, 58
[4878] 3rd February p.m. p.85
[4879] Hugh Gibb 3rd February 2010 p.m. p85 & 86
[4880] 15 June 2010 am page 46
[4881] 15 June 2010 am pages 102 and 103
[4882] Dennis O'Donnell 12th August 2010 a.m. p.162
[4883] 9 June 2010 a.m. Page 66
[4884] 3 February 2010 a.m. Page 133
[4885] 7 June 2010 a.m. Page 125
[4886] 8 June 2010 a.m. Page 3
[4887] Hugh Gibb, 3 February 2010 p.m. Page 35
[4888] 4 February 2010 p.m. Page 18-20
[4889] 3 February 2010 p.m. Page 64 and 80
[4890] 7 June 2010 a.m. Page 131 and 132
[4891] 9 June 2010 a.m. Page 66
[4892] Crown Submissions, Chapter 46(1) , paragraph 119
[4893] Chapter 46(4) , paragraph 3.
[4894] 29 July 2010, a.m., page 100
[4895] Chapter 46(4) , paragraph 4
[4896] P1943, paragraphs 123-125
[4897] P1464
[4898] 2 June 2010, a.m., page 53
[4899] Chapter 44(6), page 1
[4900] Colin Todd, 29 July 2010, a.m., page 156
[4901] Brian Sweeney, 12 July 2010, p.m., pages 76-77
[4902] Colin Todd, 29 July 2010, page 157
[4903] P1943, Chapter 4
[4904] Chapter 46(5) , paragraph 6
[4905] Colin Todd, 29 July 2010, a.m., page 157
[4906] Chapter 46(5) , paragraph 7
[4907] The FireLaw website is the Scottish Government's web-based resource for information on non-domestic fire safety.
[4908] 29 July 2010, p.m., page 130
[4909] Chapter 46(6)(C), paragraph 1; the same statement appears in paragraph 1 of Chapter 46(2)
[4910] Stair Memorial Encyclopaedia Reissue 7, para 66
[4911] Johan McDougall, 28 June 2010, a.m., page 5 et seq
[4912] Chapter 46(6)(C), paragraph 5)
[4913] Chapter 46(6)(C), paragraph 70
[4914] P1779
[4915] 29 July 2010, a.m., page 85
[4916] Ibid, page 86
[4917] 29 July, a.m., pages 113 - 114
[4918] 29 July 2010, a.m., page 127
[4919] 2nd Inventory of Productions for SM, first page of Item3
[4920] See, in particular, paragraph 94
[4921] 29 July 2010, p.m., pages 4 - 5
[4922] Formerly Chapters 1- 29
[4923] Formerly Chapter 23
[4924] Formerly Chapters 25- 35
[4925] Formerly Chapters 36 and 37
[4926] Formerly Chapter 36
[4927] Chapter 37 of original submission of behalf of the Balmers, relative to what is now Chapter 43 of final Crown submission
[4928] Brian Norton, 26 November 2009 (pm); pages 63- 80
[4929] Formerly Chapter 38
[4930] Sadie Meany, 25 February 2010 (am); page 4
[4931] Sadie Meany, 25 February 2010 (am); page 8
[4932] Brian Norton, 1 December 2009 (am); page 3
[4933] Sadie Meany, 25 February 2010 (am); page 3
[4934] Crown Submission, Chapter 20, paras 48 and 67
[4935] Formerly Chapter 39
[4936] Formerly Chapter 40
[4937] Formerly Chapters 38 and 39