PATRICK DAVIDSON v. LOTHIAN & BORDERS FIRE BOARD

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OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD DAWSON in the cause PATRICK DAVIDSON Pursuer; against LOTHIAN AND BORDERS FIRE BOARD Defenders: ________________

Pursuer: Lloyd, Thompsons

Defenders: Weir; City of Edinburgh Council

23 May 2002

1.The Background

[1]The pursuer in this case seeks reparation from the defenders for an injury which he claims occurred to him on 19 January 1995. The defenders were at the material time the Fire Authority in terms of relevant statutory provisions and as such had responsibility for the Lothian and Borders Fire Brigade. The pursuer was employed by the Brigade as a "Retained Fire-fighter", that is to say he worked on a part-time basis as a member of the Fire Brigade. His station was at Linlithgow. He also held full-time employment as a baker.

[2]Part of his duties comprised attendance at training sessions at the local fire station. Such a session had been arranged for 19 January 1995. He attended for duty shortly before 7pm. Another retained fire-fighter, Mr Scott was also on duty that evening. He was a relatively new recruit having started in the previous November. His training was not complete. That evening was a Thursday when the full-time training officer would be in attendance, Station Officer Skorupa. He decided that it would be a suitable occasion for Scott to participate in a particular drill, namely pitching a long 13.5 metre ladder onto a tower. The fire station at Linlithgow has a three-storey drill tower for practice purposes. Fully extended the 13.5 metre ladder would reach up to the third floor. Officer Scott had not done this exercise before.

[3]The drill was meant to emulate real conditions when the fire-fighters would be required to attach a long ladder to a high building. The drill requirements were not in dispute. The fire appliance was parked near the tower in the back yard of the station. Four fire-fighters were required for the exercise. Firstly, the ladder was removed from the fire appliance. At that stage it was considerably shorter than its full 13.5 metres as it was constructed in telescopic sections. The ladder was then laid on the ground with its base a suitable distance from the tower. At this stage the top or "head" of the ladder was placed furthest from the tower. The tower itself was shown on a photograph (No 12/1 of process). The various steps of the drill to pitch the ladder to the tower are also shown in photographs (No 45/3 of process). At its fullest extension the ladder will reach the third floor of the tower. The process of pitching the tower involves four men. Two are responsible for maintaining the base of the ladder in a secure and steady position on the ground. At the base of the ladder there is what is called a "jack bar". This is a horizontal lateral metal bar which protrudes from both sides of the base of the ladder. At each end of the bar are screw-like devices which can be adjusted if necessary to cope with uneven ground. On each side of the ladder there is a pole. These poles are attached to the side of the ladder some way up its length and form the means whereby the weight and angle of the ladder is controlled when pitching it to the side of a building. The poles extend down the sides of the ladder to its base. The other two men are responsible for each of the poles. As the drill commences the two pole men stand at the base of the ladder with their backs to the tower. They each place a foot on the jack bar to steady the base while the ladder is lifted. At the same time they take hold of the poles. The two jack bar men stand at the head of the ladder which at this stage is furthest from the tower. They then lift the head of the ladder and as it were walk down it lifting the ladder towards the tower. At the same time the pole men move backwards towards the tower holding their poles. As the ladder passes the vertical, its weight shifts from the jack men lifting it to the pole men supporting it. The ladder was heavy, weighing some 120kgs. The ladder was lifted until it passed the vertical. By that time the jack bar men had reached the base of the ladder. They then took over the task of steadying the ladder at its base by each placing a foot on either side of the jack bar. One of the pole men then took both poles in his hands, the base of each being on the ground, some four feet or so apart, holding the weight of the ladder. The other pole man then proceeded to extend the telescopic ladder. This he did by means of a system of ropes and pulleys. When the ladder was fully extended he then returned to his pole. The ladder was then ready to be "pitched" or placed against the tower. This was achieved by the jack bar men securing the position of the ladder on the ground by holding each side of it and keeping their weight, through one foot each, on the jack bar. The pole men then moved outwards, away from each other, holding the weight of the ladder as they did so and allowing the head of the ladder to move gradually towards the tower. One of the jack bar men, in this case the pursuer, was nominally in charge of the team and it was his job to keep his eye on the head of the ladder and, if necessary, give instructions to the pole men so as to make sure that the head of the ladder came to rest on the tower where it should be. While this procedure sounded complicated, it was not disputed that an experienced team could complete the whole drill, from removing the ladder from the appliance to placing it, fully extended, against the tower, in considerably under three minutes. There was no real disagreement between the parties about how this drill ought to have been carried out. The procedure is very fully set out and explained in the Fire Service Drill Book, excerpts from which are to be found in No 12 of process. Nor was it disputed that fairly regular practice of the drill was necessary for experienced men to keep their hand in and for men without previous experience to learn how to do it.

2.The Incident

[4]On the evening of 19 January, the fire-fighters, including the pursuer, attended for training at the fire station around 7pm. Amongst other procedures planned for evening was the 13.5 metre ladder drill (L3). One of the purposes of the drill was to familiarise Scott with the procedure and to assess his capability in carrying it out. If he proved to be satisfactory, he would then be certified as fit to be part of the operational crew. He had never done the drill before and had no experience in ladder handling. In the normal course of events he would have done this earlier in his career but for a number of reasons this had not proved possible. He had watched it being done before. The station officer, Mr Gray, had decided that the drill would take place that night. Mr Skorupa was in charge of the drill. Another officer, Mr Tupling, was there to assist in case of any difficulty. The exercise began towards 7.30pm. First of all the drill was carried out by four experienced officers including the pursuer who was at position No 1, namely on the jack bar to the right of the ladder. The drill was carried out without any problems. It was watched by Scott who was taken through the procedure by the training officer, Skorupa. Thereafter the drill was repeated with Scott participating. On this occasion the four officers pitching the ladder were the pursuer, again on the jack bar to the right, Lawrence on the jack bar to the left, Scott on the right hand pole and Arthur on the left. Armstrong, who had earlier been on the right pole of the first drill was also standing by. The men then proceeded with the drill. The ladder was raised to the vertical and fully extended. The two prop men, Arthur and Scott, holding their props, then started to move outwards so that the head of the ladder moved towards the tower, aiming for the third floor window. They were then taking the weight of the ladder. Before the head of the ladder reached the tower, the head swung across to the right in the direction of the fire station building. Control of the ladder was being lost. Mr Tupling shouted, "You're losing it" or "You're going to lose it". The pursuer reacted by jumping onto the jack bar with both feet and trying to twist the ladder back to the left. In doing so he suffered an injury to his back. At the end of the day it was not really disputed that the movement of the head of the ladder had been caused by a sudden gust of wind. Other factors may or may not have been contributed.

3.The Evidence on the Merits

[5]In this case I do not feel it necessary to describe the evidence given by the witnesses in detail. For a number of reasons, particularly an enforced change of counsel for the defenders, the full notes of the evidence have been extended. I shall therefore confine myself to giving an outline of the testimony particularly as it related to the contentious issues.

[6]The first witness was the pursuer. He, of course, described the events that led to his injury and the proper procedure for carrying out the drill. In particular he stated that the function of the jack bar men in the pitching process was partly to control any motion to either side of the tower by the ladder. It was as the prop man moved outwards that something went wrong. He reacted by straddling the full base and trying to twist the ladder back. When first asked in Court as to what had caused the unexpected movement, he first of all put it down to inexperience on the part of Scott with perhaps the weather conditions as well. He said it was the function of the pole men to control the head of the ladder when it was being pitched. Scott failed to do that and the ladder moved towards his side. He probably caused it rather than failed to prevent it. According to my note, the pursuer said: "he (Scott) knocked" the head to his side. The wind caught it. That added more weight to the ladder and added more difficulty to the drill. The drill should not be difficult. It required skill and strength and training to do it properly. He asserted that even with an experienced crew there was always a risk that control of the head of the ladder might be lost, even if the weather was calm. He then re-affirmed that he had blamed Scott. When asked if he blamed Scott alone an objection was taken by counsel for the defenders on the basis that there was no case on record blaming Scott's experience as being the cause of the loss of control. I shall return to that in due course. On resumption the pursuer again stated that it was Scott that did not do his job properly. Scott did not look strong enough and was inexperienced. He just wasn't ready that day to pitch a ladder. The pursuer agreed with his counsel, Mr Lloyd that it was Skorupa's job to assess whether an inexperienced recruit had sufficient experience to do the job, that is to pitch the ladder at its full height. He also agreed that if Skorupa had been in two minds, he could have postponed the drill or done it differently. It was easier to do it with a shorter ladder. After some pressing and to be frank, leading by Mr Lloyd as to the real cause of the mishap, he decided that it was probably the weather that caused the ladder to move to one side. If the drill had been done a different way it might have made a difference. Raising it just to the second floor would have made such a difference. The ladder being shorter would have been easier to control. Putting extra men on the props would have defeated the purpose of the drill. When the ladder moved he put both feet on the jack bar and tried to move the ladder back onto the building. It was pure reaction. He put his full weight on it. The two other men came on the bar. Among them they managed to push the head onto the tower. The bar had moved slightly in the same way as the ladder. He realised his back was then giving him pain.

[7]In cross-examination the pursuer accepted that during the first drill Skorupa stopped the men at each stage and explained the procedure to Scott. That made the drill last longer than usual. During that drill the pursuer said that he was aware of the wind, but they were an experienced crew and had done the drill before. He remembered it was "gusty" but it gave them no difficulty during the first drill. No-one commented on the wind. He agreed that during the second drill Skorupa was giving instructions. He said that he could not dispute that it was again done stage by stage with Skorupa giving instructions. When the ladder had been extended and the men were in position it was he, the pursuer, who gave the order "head on to the building". There was no difficulty with the wind at that stage. He was in operational charge of the crew and kept his eye on the head of the ladder. He could not say if the head twisted or swayed. He accepted that the question of loss of control of the head of the ladder had been dealt with in training. In such circumstances it was for the prop men to bring the head under control. The job of the men on the jack bar was then to lean their weight onto the ladder. He also accepted that on this occasion he did not do that but jumped onto the jack bar instead. It was a simple reaction. He did this even although Tupling and Armstrong were by then assisting Scott with the pole. In trying to twist the ladder back into position he twisted his back.

[8]The next witness was George Gray who was also a retained fire-fighter. He was the officer in charge of the Linlithgow Fire Station. He was present on the night undergoing training. He was participating in a different drill and did not see the pursuer getting injured. He testified that the pursuer was a very keen fire-fighter who took a strong pride in his local station. His attendance had been exemplary and he was very competent. At the time of the incident it was windy but there wasn't a gale blowing. The wind is a factor to be borne in mind when doing an L3 drill. It was for the officer in charge of the duty, in this case Skorupa, to assess the wind and take precautions if the wind was strong. Mr Gray had of course done L3 drills in the past. It was for the men on the props to work in tandem to control the ladder. If there was an inexperienced man on a pole, there should be a safety man beside him, as there was on this occasion, to take over if the novice had any difficulties. Mr Gray accepted that there was a risk that things might go wrong, leading to a risk of injury. However, he felt that where such a novice was involved, any such risks occasioned by his inexperience were acceptable if he knew what his duties were and felt comfortable. With hindsight as to what happened, Mr Gray accepted that it might have been better to do the drill with the ladder at its lowest extension first. Mr Gray agreed that he had signed the Accident Report Form (No 12/12 of process). In that document the circumstances of the accident had been described as follows:

"Pitching 135 ladder against tower when gust of wind caught the head of the ladder causing the ladder to swing away from the tower. Injury sustained while controlling the ladder. Weather conditions: steady drizzle with moderate gusting wind. Yard lights in use."

Although Mr Gray had not actually witnessed what happened to the pursuer, he did sign that form. He said that he did so after consulting everyone and satisfying himself that what was written was correct. He was happy with the description of the wind condition. The report was completed at the time.

[9]In cross-examination Gray said that if he had any reservations about the weather, he would have said something to Skorupa but he did not do so. This tallied with the evidence of the men involved in the drill who also expressed no concerns. Further, he said that he had no concerns about the L3 drill proceeding with the participation of Scott. The pursuer was the number one man on the drill, both confident and experienced. Apart from Scott this was an experienced crew, operating with a safety officer and a training officer. In re-examination he vaguely recollected that there was a wind but Station Officer Skorupa was in charge of the drill and as ranking officer it was for him to assess the wind. Number 12/8 of process, a description of windspeeds that night, was put to him. Without familiarity with the terms of that document he agreed if the wind was gale or near gale force the L3 drill should not have been carried out.

[10]The next witness was Mr Arthur, another retained fire-fighter on duty that night. He had been part of the crew involved in the drill pitching the ladder to level 3. He was the prop man on the left. He took part in the first drill to show Scott what to do. He couldn't remember what the weather conditions were like. Pitching the 13.5 metre ladder took skill and co-ordination. Training and experience were required to do the job properly. There was no real risk of losing control of the ladder. The weight was at the head, going towards the building. It would just fall into the building. In the second drill he remembered that the ladder was extended to its full height, but had no comment on what went wrong. He did remember the pursuer hurting himself. He was doing his job properly. He accepted having signed a statement on 26 June 1995 (No 12/11 of process) to the effect that "the wind caught the ladder - the ladder started to fall". The events were fresh in his mind at that time. He also accepted that in the second drill Mr Tupling was there for safety in order that if anything happened he should step in. He had done the exercise in windy conditions before, accepting that he had to do it in all conditions that might be expected in service. The risks involved should not be compounded with an inexperienced man as the other three knew what to do. In cross-examination he said that he did not remember any earlier difficulty with the wind that night.

[11]The next witness was Steven Torrie, a Senior Divisional Officer, who at the material time had been head of training. He had prepared a service training record for Fire-fighter Scott (Nom 37/1 of process). He confirmed that the drill on 19 January 1995 was Scott's first experience of ladder handling. The precise purpose of his participation in the drill that night was to introduce him to the basic techniques and procedures adopted by a crew pitching a 13.5 metre ladder. Mr Torrie was a witness for the defenders but was called by the pursuer's counsel at this stage for reason of convenience.

[12]In cross-examination Mr Torrie stated that he had a lot of training in L3. Skorupa was one of his most experienced training officers. He was a highly competent training officer. It was his duty to consider the nature of the ground, the wind conditions etc before conducting a drill. He would know how the ladder behaved in the wind and would balance any risk against benefit to the trainee. That was a judgment based on experience. One factor would be the relative experience of the rest of the crew. One of Skorupa's functions would have been to assess Scott's competency. Torrie accepted that if there was a risk Skorupa could apply "control measures" or cancel the drill. At no stage did he suggest that the drill could or should have been carried out with the ladder not fully extended. He said that by its very nature firefighting was a risky job done in dangerous situations. A trainee had to be exposed to risk in training also. This policy was supported by the Health and Safety Executive. In the present instance there was a very experienced safety officer, Mr Tupling, present along with a good complement of experienced people. This should provide ample protection in the event of anything going wrong. In fact, this was one of the most basic and routine drills which was done frequently. Doing it in realistic, rather than ideal conditions was important. In re-examination, a situation was put to Mr Torrie postulating (a) a wind at gale or near gale force and gusting and (b) an inexperienced man on the props. He was asked if in such circumstances it would be sensible to extend the ladder to its full height. He replied "No". In practical terms, he said the reduction in risk by reducing the height of the ladder was insignificant. The way in which Scott had been trained was the routine and proved very successful.

[13]The next witness was Stanley Wyners. He was called by the pursuers as an expert on fire service practice. He was retired but between 1961 and 1991 had served with seven different Brigades ending as Deputy Chief Fire Officer for Merseyside. From 1980 to 1984 he had served with the Lothian and Borders Brigade as officer with overall responsibility for training. He was a member of the Institute of Fire Engineers and presently worked part-time as a consultant in fire service legal cases. He confirmed views already expressed by other officers that with regard to a drill such as L3 safety responsibility lay with the officer in charge of the drill, as specified in the Fire Service Drill Book (No 12/2 of process) paragraph 5. Paragraph 9 provided in adverse weather conditions an officer "should introduce such extra safety precautions as are necessary". There was no definition of "adverse". It was a matter of judgment. L3 was the second most difficult ladder drill due to the weight of the ladder and its lack of manoeuvrability. At its full extension the ladder became unstable even with an expert crew in calm weather. However, one would expect control to be regained in such circumstances. The props were the most difficult to handle. They controlled the head. If you lost the head you lost the ladder. Co-ordination between the props was very important. Actual handling was the best way to learn. Mr Wyners expressed the view that he would not extend the ladder at all on the first or second drill with a new recruit. Once the officer in charge was satisfied with the recruit's ability to do that, he should then increase the length. The weather was a factor to be taken into account in planning ladder drills. If a wind was at gale force he would cancel the drill. If gusty he would not extend the ladder to its full height at all. It was for the officer in charge to assess. Precautions to reduce risk must include either reducing the height of the ladder or running the ladder up the tower by its wheels. The Drill Book was taken very seriously and every training officer should be familiar with its terms. Mr Wyners also referred to No 16/1 of process - the Manual of Firemanship - paragraph f of the excerpt related to the effects of the wind. Admittedly that related to the effects of wind on fires but did describe the unpredictability of wind.

[14]The witness had made himself aware of the alleged circumstances of the L3 drill on 19 January 1995. He had checked the records and confirmed that Fire-fighter Scott had not handled the ladder before. He had been informed that it was a typical blustery January night. In these circumstances he expressed the view that the decision of Skorupa to hold the drill as he did was "foolhardy at the lowest and negligent at the highest". If the gusts were up to gale or near gale he should have cancelled the drill. If it was blustery, he should not have fully extended the ladder at least on the first attempt.

[15]In cross-examination he accepted that a number of precautions were taken that night. Scott was given verbal instructions on how it was done. He was then shown how it was done. He was told what happened when the props moved. In attendance at the drill were a training officer, a safety man and a spare man. Even so, Mr Wyners would not have fully extended the ladder until he was satisfied that Scott was ready for it. He accepted that an experienced training officer such as Skorupa was a man of skill and judgment. He knows the risks. He knows he should not risk men or equipment. He was an operational officer. He was good enough not only to do the job but to teach others how to do it. Adverse weather was part of the job and a risk that officers would always be aware of. That was particularly true of a very experienced training officer and a very experienced safety man. There were thus six men in attendance who knew about the effect of the wind at heights. It was then put to Mr Wyners that not one of them had expressed concern about the wind either at the time or in hindsight. That did not cause him to change his view. He again said that extending the ladder to the third floor with a new recruit doing the drill for the first time was "an unsafe practice". The decision was definitely one for the training officer who must take responsibility of it goes wrong.

[16]The next witness was Trevor Tupling. He had been the safety man when the L3 drills were carried out. He had 30 years experience, 17 as a leading fire-fighter at Linlithgow. Apart from usual training the purpose of the drill was to demonstrate the capability of Scott. As to the actual incident, the ladder was being lowered to the window when it moved to the right in the direction of Scott. The pursuer moved to push the ladder to the left. Armstrong moved in to assist Scott. Tupling may have shouted "You're losing it". It was the head of the ladder which moved, not the jack bar. The head twisted to the right. The ladder itself was flexible enough to achieve that. Control of the head was corrected before the jack bar left the ground. The pursuer did not move his feet from the bar. He twisted his body and put his weight on the ladder. Scott and Armstrong pushed the prop up to put the head on the window. The whole incident took four or five seconds. Tupling described the weather conditions as blustery and described the incident as "just one of those things". He surmised that maybe Arthur on the left prop had been more zealous than Scott and had thus pushed the ladder to the right. However, he didn't see Arthur do anything wrong. There was a degree of difficulty in pitching the ladder and it had to be done with caution. It required co-ordination amongst the four man crew, especially between the two prop men. The same drill had been carried out immediately before with no problems. The only difference between the two was the presence of Scott. Scott had watched the first drill.

[17]With regard to the weather, Mr Tupling expressed the view that on a calm night with an experienced crew control of that ladder should not be lost. In wind with extra caution you should manage the drill fine. If it were gale force, you wouldn't do the drill. You should train in all weather as you have to turn out in all weather. That night it was quite windy - not gale force - gusting - not a steady wind - blustery. Responsibility for the drill being safely carried out lay with Skorupa, who would have taken the weather into account, and also the experience of the crew "to a certain extent". At an actual fire if the weather was bad additional men would be put on the props. That wasn't necessary that night. There had been no problem with the first drill. Armstrong was put beside Scott to assist if necessary. Mr Tupling had not known that Scott had never handled the ladder before. That would have concerned him. He also accepted that control was easier if the ladder had been pitched only to the second floor. Also he accepted that they had plenty of time that night to carry out the drill. If the wind had been bad, they could have waited until it had calmed down.

[18]Mr Tupling was then asked questions about the Accident Report Form (No 12/12 of process) referred to above. His writing was at the top of the page. He agreed with the description of the circumstances of the accident. He could not remember if the wind was "moderate or severe". He identified No 49 of process as the original form. The circumstances of the accident were in his writing. He didn't remember scoring out the words "in strong winds". He filled it in as he was safety officer and would have given it to Mr Gray or Mr Skorupa. If he wrote the scored out words then the winds must have been strong. He accepted that were that so, it was probably the wrong decision to hold the drill.

[19]In cross-examination, Mr Tupling accepted that he also wrote "in moderate winds" which was inconsistent with "strong winds". He also accepted that he had signed a statement (No 12/10 of process) which had been prepared by Skorupa from what the men had told him. It stated inter alia: "A gust of wind force the head of the ladder to move suddenly". He had assumed that to be the cause at the time and was still of that view. Any other causes were simply speculative and he did not see any (my emphasis) of the crew doing anything wrong. Mr Tupling states that he had no misgivings about doing the drill. He probably wouldn't have done it if the wind had been gusting to gale force. He had never had a problem with Skorupas' capabilities. He carried out that drill many times, including with recruits. He had not been concerned about the wind or the recruit that night. He was referred to No 12/9 of process, a letter from Mr Skorupa dated 5 June 1995 in which the author said inter alia: "A possible explanation for the sudden unexpected movement of the ladder was a gust of wind moving the head away from the building". Mr Tupling agreed with that. The head had moved about two feet, roughly the width of the ladder. That was a small deviation for the length of the ladder. Mr Tupling then stated again that he had no misgivings about the wind or the involvement of a recruit. He had no experience of the head being lost in the past. This was a normal drill for training a recruit on that ladder which he had done before.

[20]Finally in re-examination Mr Tupling accepted that it was windy but that he couldn't be sure about the strength.

[21]The next witness was Charles Lawrence. He had been a fire-fighter with Lothian and Borders for four years in 1995. He remembered being on duty that night but could remember nothing else about what happened. He did remember that Scott was inexperienced and that he had no misgivings about that.

[22]The next witness was Richard Charles Tavony, a meteorologist with the Met Office since 1968. One of his duties was to answer enquiries from lawyers, engineers and the like about weather conditions. He was not a forecaster but a person who could interpret weather data and place weather in perspective. He had prepared a report in the present case and identified No 12/8 of process as having been signed by him in June 1996. One of the appendices to the report, RCT/4, was a record of hourly windspeeds and directions at Edinburgh Airport on 19 January 1995. From 1600 hours to 1800 hours that night the wind had been east north east (060). From 1800 hours to 2000 hours it had been north east (050). Between 1900 hours and 2000 hours it had changed to south west. Between the hours of 1800 and 2000 the windspeed had been decreasing from 23 knots at 1800 to 13 knots at 1900 to 3 knots at 2000. The hourly speed given was the mean average and therefore could have been higher at any particular minute or indeed lower. Appendix RCT/7 gave further details as to what the above windspeeds represented on the Beaufort Scale. Thus the speed at 6pm (23 knots) represented a strong breeze, force 6. The speed at 7pm (13 knots) was moderate force 4, and the speed at 8pm (3 knots) was light force 1 to 3. RCT/4 also gave information about "gusts" at the relevant times at Edinburgh Airport. There was no table of forces for gusts. If there had been a strong wind as the mean for the hour the gusts would have been at higher speed. The maximum gust speed was at 5pm that night and was recorded at 32 knots. That was not "near gale". Gusts can vary according to terrain and degree of shelter/exposure. Thus over the sea the wind was not gusty. With height in hilly or built up areas, the windspeed goes up with height and it is less gusty. Mr Tavony was unable to say what effect a gust of 32 knots would have on a ladder. He was able to say that at 7.30pm it was by no means abnormally windy. If it was gusting, a lay person would say it was windy. "Blustery" was a fair description. The wind had been strong that afternoon/evening, then had died off, then had got strong in the opposite direction. Between 6 and 7pm it would have been noticably windy but not such as to need any warning signs for example, regarding high-sided vehicles. The effect of the wind direction in the area of the station that night was such that it would be blowing almost right onto the face of the tower. On the exercise of pitching the ladder being explained to him, he accepted that such an exercise was vulnerable to wind but expressed the view that it was not all that windy for problems to arise. The wind was always gusting; it was not more gusting that usual that night. In cross-examination Mr Tavony was referred to No 12/8A of process which showed that by 7.30pm the gust speed had fallen below 20 knots. Therefore at that time it was substantially lower than at the highest gust speed over the hour. At that time the mean speed had fallen to 13 knots and had fallen off even more thereafter, down to 8 knots at about 8pm.

[23]With reference to the Joint Minute and the Minute of Amendment the pursuer then closed his case. The first witness on the merits called by the defenders was John Sharp, a senior instructor at the Fire Training School at Gullane. He explained that the 13.5 metre ladder was in common use and one with which the recruits would have to be familiar. He had of course trained recruits in use of the ladder according to the training manual. At basic level, he talked recruits through with special emphasis on positions throughout and the maintenance of safety. Firstly, they would practice setting the A-frame position, taking the ladder to the vertical and back again. Then they would practice full extension. The primary use of the ladder is at third floor level although it can reach fourth. They always trained at third floor. He would consider such matters as weather conditions and manual handling in general. It was heavy equipment and recruits had to know how to lift. Relevant conditions were frost or water underfoot or wind. If windy it was for the instructor to assess. He did a "dynamic risk assessment". If it was too windy he didn't do the drill. His assessment can vary according to the experience of the recruits. They had to be taught to be careful due to gusting winds. In the event of the ladder becoming unstable they were instructed to get the ladder into the building. The wind can affect the head of the ladder. Mr Sharp was dealing with the school training situation where the drill was being done by four recruits at a time. He described this as a perfectly safe procedure. With three experienced men and only one recruit the drill will be even safer.

[24]In cross-examination Mr Sharp explained that the two stage procedure was for four new recruits. At Brigade training they do the whole drill. He accepted that inexperience and windspeeds could in general increase risk. In such cases he would have a safety man to step in if a recruit had a problem.

[25]The next witness for the defenders was Richard Skorupa. His rank was that of station officer. He had 34 years experience in the service including three years as fire safety officer, two years instructor and five years in the training department to which he was attached in 1995. He was responsible for training at four part-time stations, including Linlithgow, and some full-time stations. In January 1995 his schedule included the training of Fire-fighter Scott who was a newly appointed retained fire-fighter. He had a six week induction or basic training course. He should have by January been assessed at all basic skills but had missed ladder assessment because of the holidays. He was to be assessed at ladder drill that night. Skorupa asked Station Officer Gray for a good ladder crew to do the drill. There had been a very strong wind during the day and he had swithered about doing the drill. As he drove to Linlithgow the wind was still strong and he decided to forego the ladder drill. By the time he arrived at station, the situation had changed and there was little or no wind. The trees were hardly stirring. He decided to do the ladder drill and informed Gray. He asked for a crew plus Tupling as safety man. He checked again outside and was satisfied that the weather conditions were okay for the ladder drill. The crew assembled and he explained his intention to do the L3 drill. He introduced Scott to the drill and the ladder. He explained he would do a demonstration in stages and that Scott should watch. Then he would take part. He explained to Scott how the ladder operated. He told him what position he would be in and to pay particular attention to that man. The crew then performed the demonstration at a steady pace in stages. He gave Scott a running commentary. The drill was completed. Scott then replaced Armstrong and the drill was done again in stages. The weather remained as before. The pursuer gave the command "head in". The crew lifted the props and the ladder started to swing to the right. The swing was less than a foot but enough to warrant action. He had been watching Scott who seemed very good. A warning was shouted. Armstrong moved to assist Scott. Skorupa had asked him to stand by just in case. Skorupa moved to assist the pursuer. They all got the ladder under control and against the building in a few moments. He decided that a gust of wind had probably moved the ladder. He gave his account in writing on 5 June (No 12/9 of process). He had no doubts that it was okay to do the drill even with a recruit. He monitored conditions throughout. He recognised No 31/3 of process as the Manual Handling Assessment in respect of the 13.5 metre ladder. He took all such factors into account and was able to make adjustments if anything went wrong. He was also familiar with a document from Health and Safety Executive, No 12/7 of process. He agreed with its terms. He was throughout looking to eliminate all possible risks regarding a recruit like Scott.

[26]In cross-examination Mr Skorupa accepted the risk factors involved in wind. He said that if the wind had been strong he would not have done the drill - certainly not with a recruit involved. He accepted that you cannot predict wind and always had to be on the alert. He said he explained Scott's inexperience to the rest of the crew. If Scott or any of the crew had expressed any problems he would have stopped the drill. He knew Mr Wyners and accepted that he had great experience. When it was put to him that it was not appropriate to ask Scott to do what he did, he replied, after some vacillation, that Scott had performed admirably on the drill. He disagreed with the descriptions in the Accident Reports that there was a moderate gusting wind and that there was drizzle. He had no idea how the phrase "in strong winds" came to be written. He disagreed with Wyners that in the circumstances it was necessary or desirable to pitch the ladder in stages as long as the drill itself was done in stages, which it was.

[27]With reference to the various productions the case for the defenders was then closed.

4.Evidence Regarding Damages

[28]The pursuer said that after the incident took place his back was giving him a bit of pain and so he went to St John's Hospital. The pain was at the small of his back - where it still was. While he was at the hospital the pain moved down his left leg. He was directed to physiotherapy. That did not really do any good. He thought it did more harm than good and so he stopped it. He was off work until August 1996. His general practitioner directed him towards the Orthopaedic Department at St John's Hospital. Also he was sent to the Western General Hospital in Edinburgh. They were investigating the question of a slipped disc but that proved negative. He had a myelogram which was very painful. He also had a CT myelography scan. He was told there was no slipped disc. He had facet joint injections at the pain clinic in March 1996. These proved unhelpful at first. The Brigade sent him to a rehabilitation clinic in Penrith. There he had two weeks constant physiotherapy. That made a big difference. He felt very good when he came back. That was in May 1996. He felt more supple and a lot fitter but there were still some exercises he couldn't do. Between the accident and going to Penrith, he had back trouble such that he could hardly walk. He had pain in the same place. It was not in the right leg. The pain stopped him doing any sport such as football, rugby, badminton, volleyball and hockey. With the pain he had to keep erect at all times, for example, when shaving. He couldn't have stood for more than ten minutes. He could only sit for ten minutes and then had to get up. Curled up in a ball was the only position that gave him relief. He was referred to the records of the defenders' occupational health advisor (No 13/1 of process). That disclosed that on 7 June 1996 he was complaining that his sleep was by then undisturbed. He said that before that he couldn't sleep at all. On 25 June 1996 he saw the orthopaedic consultant Mr Court-Brown. He did not go back to work until 2 August. He was off for 18 months. The pain was constant for seven to eight months, then it fluctuated, he had good and bad days. When he was off work he was depressed, drinking heavily and not meeting anyone. At that time he was living with a girlfriend, Rhona Patterson. They shared a house which they both owned. He was with her for four and a half years. They split up but he could not remember when. The split up was due to his foul moods and drinking. His depression was because he was not working at either job and he liked working. As a baker he was on his feet constantly. He worked there as the employer would let him away to do his fire training work. He did not discuss his depression with anyone except his general practitioner. In August 1996 he went back to the bakery. He told the baker that he couldn't do any lifting. The baker agreed that if he was in pain he should sit down. That lasted for a few months. He went back to the Fire Brigade in August or September 1996. The problem was the same as at the bakers. He could not do one job and not the other. The baker's job was left open until he told him that he was not going back. He could not remember when that was. He left the Fire Brigade because of the back pain that he suffered in the bakehouse. If he couldn't do the baking he couldn't fight fires. The Fire Brigade was not busy over that particular period. In September 1996 he was experiencing the same pain again. He went back to hospital and had more injections. These were in August 1997. He had difficulty in getting appointments. He had some physiotherapy but it did no good. In September 1996 he saw the Brigade's doctor again. He was retired because of ill-health on 14 May 1997. That broke his heart. The Fire Brigade was a brilliant job. He loved helping people and was well known in the town for what he did. He told Dr Bell, the Brigade's doctor, that. His record of call-outs was 90% and one of the highest at the station. In September 1996 he had a second lot of injections but they proved to be of no benefit. Before that he had attended at the Princes Margaret Rose Hospital. He had not been examined, just told that he had mechanical low back pain and that no surgery was possible. He was "gutted". He was never going to be the same again. He was referred for psychiatric treatment in January 1997. That was of no benefit. It was just counselling and some medication but he did not know what. His general practitioner Dr Cochrane gave him tablets for depression. He put more weight on and became more violent and lost his friends. That made him more depressed. He sat in the house and just hid. He formed a new relationship with a girl called Linda in about November 1995, shortly after he broke up with Rhona. She worked in Tesco and was a fire-fighter. That upset him and he tended to run her down because of it. He was still drinking, heavily at the weekends with a bottle of rum and 24 cans of beer. He used to drink more than that. In November 1998 he got a job with Cook's Energy Limited who worked for Scottish Telecom selling airtime. He worked on his own account with a man called Alex Campbell. He earned about £200 a week gross and was paid in cash. That lasted about three or four months. He was shown No 31/4 of process, the Cook's records. He confirmed that that was all he received. Later he and Campbell had a small partnership which they split 50-50. Cook's owed them money. They didn't pay it and so they left. He then worked with Pinnacle Telecom. No 37/2 of process showed from their records that his pay was based on £200 per week. Since April 1999 he only got £200 a week. He was meant to get a percentage but they did not pay that. There were no wage slips because he was paid in hand. The job involved the same type of work, that is to say selling airtime. It was not a secure job. After the accident he required assistance in his house from Rhona, doing such things as washing up, hoovering and ironing. He would have done those tasks himself as he was very houseproud and enjoyed keeping his house clean.

[29]In cross-examination the pursuer accepted that he had back trouble before the accident. No 28 of process, his GP records, were put to him and the pursuer had to accept that there were a number of entries between July of 1991 and January 1994 when he had visited his general practitioner complaining of conditions which might well be ascribed to having problems with his back. He also accepted that from about November 1993 until his discharge in about April 1994, he had been prescribed courses of physiotherapy. He also accepted that he failed to attend the last appointment and did not complete the course. All of that was prior to the accident in January 1995. He also accepted that after the accident he had been prescribed various courses of physiotherapy and that there were gaps when he did not attend the prescribed courses. He decided in about March 1995 that he was getting no benefit from it but he could not remember why he did not attend throughout the course.

He had further physiotherapy in 1996 up until his discharge in October of that year. No 10/4 of process contained various documents relating to the physiotherapy which he received. He accepted that he had failed to attend on one occasion a six week course which had been prescribed for him but could give no reason why he didn't go. He claimed that the physiotherapy he received at Penrith gave him considerable benefit and it was that that enabled him to go back to work. He claimed at first that he had been given a regime of exercises after that course and that he had adhered to it. However, from No 10/4 of process a physiotherapy discharge on 1 December 1997 it appeared that he was doing the exercises prescribed for him at Penrith "infrequently". He also accepted that he was involved in a road traffic accident in 1996 when he suffered soft tissue injury to his lower back. He accepted that he did not tell Mr Court Brown about that in June of 1996 and could give no answer to the question as to why he had failed to do so. It was suggested to him that he had been trying to conceal such a matter for purposes of the present litigation. He was very evasive in his answers in relation to this passage of cross-examination. It was further put to him that in June 1997 he saw a Dr McBurnie at the Princess Margaret Rose Hospital. He accepted that, but claimed that she did not examine him. It was further put that she found nothing wrong with him. Reference was made to another document in 10/4 of process dated 13 June 1997 in which Dr McBurnie said that he complained of mechanical low back pain but that no cause could be found. It was put to the pursuer that he was fit for work by September 1995. He denied that. It was further put to him that if he had followed advice, he could have remained at work but he denied that also. It was claimed and put to him that he was at least fit by March 1996 but that the road traffic accident set him back. He denied that also. He agreed that as far as depression is concerned that he was prescribed a certain drug by his general practitioner in about August 1996. He accepted that he did not take it as it gave him headaches. He had by then began to drink heavily. He was referred to St John's Hospital for psychiatric treatment. He was prescribed a different drug but accepted that he was only taking small amounts of that drug at his own choice. He also accepted that by March 1997 he was receiving advice regarding his alcohol intake but that he did not take the advice. He also accepted he was taking the drugs prescribed for him intermittently. In general he did not take the advice that he was given. He also accepted that during 1997 he failed to attend various appointments but could give no good reason for that. His last such failure was on 27 June 1997 when he was discharged from further psychiatric care. In general terms he accepted that he failed to take certain drugs as he preferred to take alcohol instead. He had been told that alcohol was a depressant but he did not take that advice nor did he take the drugs that were given for him. He did not take an employment course that was recommended to him. He did not keep certain appointments.

[30]The principal medical witness for the pursuer at least in relation to his physical condition was Mr Court-Brown, a consultant orthopaedic surgeon in the Royal Infirmary of Edinburgh. He had been a consultant surgeon for some 14 years. He examined the pursuer on three separate occasions and prepared three medical reports. The first of these reports was a report of 26 June 1996 (No 5/1 of process). The evidence of Mr Court-Brown was taken on commission over two separate days in October 1999. It follows therefore that I have no notes of his evidence. Such evidence is of course to be found in the extended shorthand notes which form No 44 of process. These extend to some 140 pages and I see no purpose in recording his evidence in detail in this judgment. For the purposes of this judgment I shall try and summarise his evidence as briefly as I can. In his first report Mr Court-Brown gives a record of the history given to him by the pursuer when he first saw him. In that history the pursuer ascribes his back problems to the injury of 19 January 1995. It should be noticed that for the purpose of the preparation of this report Mr Court-Brown had examined the medical records which were relevant to the pursuer but which related only to his medical history after the accident on 19 January. In his evidence Mr Court-Brown was taken through various parts of the medical records relating to the post-accident findings of the various doctors and the various treatments which were prescribed for the pursuer. He made several comments as to his understanding of these various records. It would appear that he had a very detailed knowledge of this documentation. In his own report Mr Court-Brown went on after the history to describe the pursuer's present condition as given to him by the pursuer. In the course of that he noted that the pursuer said that he did get some mechanical back discomfort from time to time. Mr Court-Brown in describing what mechanical back pain or mechanical back discomfort was, explained that it was a degenerative pain, pain from degenerative changes in the lower lumbar spine that presents in a very characteristic way. In a further chapter in his report Mr Court-Brown records that the pursuer was adamant that he had not had significant backache in the past and he had had no time off work because of backache. As Mr Court-Brown said that is something that the pursuer told him. At all times the pursuer had impressed Mr Court-Brown as a genuine man. For example, he had told him that he wanted to get back to work fairly soon and Mr Court-Brown believed him. It was put to Mr Court-Brown that in the course of this report he made no reference to seeing any "inappropriate signs or inappropriate findings". When asked why he had noted no such findings he said that he did not specifically look for them. Such signs might have been looked for when a doctor was not convinced that the results of his examination squared with the volume of complaints that he was getting from the patient. That was not the case in this examination as the pursuer was quite consistent and appropriate. At one point Mr Court-Brown was asked what would be the effect of depression on a patient who was suffering from back pain. He answered that it unquestionably worsened the problem. He thought that the patient is less able to cope with the back pain and in sequelae that made life much more difficult for the patient. In that part of his report which dealt with his opinion he said this:

"There seems no doubt that Mr Davidson damaged his lumbar spine as a result of the incident on 19 January 1995. He has been investigated and there was certainly no evidence of a slipped disk. It would appear therefore that the most likely diagnosis is that Mr Davidson had a flare up of otherwise quiescent minor degenerative changes in his lumbar spine, these mainly involving facet joints."

He was able to express that opinion of exacerbation of the degenerative changes rather than saying for example that the back pain was simply a straightforward consequence of the accident from the very nature of the medical history and his own examination of the patient. That was so even although he was not aware of any complaints of back pain and made to any doctor prior to the accident. There was no inconsistency there since the degenerative changes may have been prior to the accident quiescent and given rise to no symptoms of pain. He was of a clear opinion that the accident had caused an exacerbation of pre-existing degenerative changes in the spine. In summary, Mr Court-Brown in his report said that he believed that Mr Davidson had had a back injury as a result of the January 1995 incident. It was likely that this exacerbated minor degenerative changes in his lumbar spine and it was also likely that had he not had the accident he would not have presented with back pain for many years to come. The prognosis was good but he would probably get episodic discomfort in the future. He was not surprised, bearing in mind the two occupations which the pursuer had and that he had in fact been off work from January 1995 to June 1996 or so.

[31]Mr Court-Brown saw the pursuer again on 10 February 1998 and prepared a report as a result of that examination (No of process). In that report he recorded the various medical steps that had been taken in relation to the pursuer since he had first seen him. Again he noted no inappropriate signs. The results he obtained on examination were consistent with the complaints made to him in February 1998. None of the medical documents to which he was referred and which related to the period between his first and second reports caused Mr Court-Brown to change his diagnosis of exacerbation in degenerative changes of the spine. In particular, he agreed with the various observations which diagnosed Mr Davidson's condition as mechanical back pain. He was by then aware that Mr Davdison had been retired from the Fire Service in about May 1997 and said that he would have supported that decision as his back pain had not improved. It clearly had not improved. Mechanical low back pain in fact, he said, was caused by a number of spinal conditions of which by far the most common was degenerative disease of the spine or osteo-arthritis of the lumbar spine.

[32]Mr Court-Brown saw the pursuer on a third occasion in March 1999. By that time he had been given access to the pre-accident GP records. In March 1999 it appeared to Mr Court-Brown that the pursuer's condition was essentially unchanged from when he had reviewed him in February 1998. Once again there was no record of any inappropriate signs. In relation to the pre-accident GP notes Mr Court-Brown noted that they were certainly instructive. In the first place they indicated that the pursuer had not been correct in telling Mr Court-Brown that he did not have back pain prior to the 1995 injury. Mr Court-Brown was then taken through all the pre-accident medical documentation in some detail. In particular he was referred to all the documents which might have some bearing in relation to back pain. In particular at the conclusion of that documentation he was referred to a particular document which was headed "Lothian and Borders Fire Brigade Medical Report - Retained Service" and related to Mr Davidson. There appeared to be a recommendation that the pursuer was fit for operational duty as at 14 November 1994. This was of course not long before the accident in January 1995. Mr Court-Brown was of the view that the pursuer had had sequentially worse attacks of low back pain over the period time before the accident and the accident had merely worsened this tendency. By 1999 Mr Court-Brown was able to say this:

"It is very difficult to quantify the extent of any patient's pain and this is particularly so if the patient is depressed and abusing alcohol. Given these circumstances it is highly unlikely that any form of treatment is going to be all that satisfactory and I believe therefore that the prognosis is very poor indeed. I think it is likely that Mr Davidson will continue to complain of low back pain and I suspect that he will be unable to work to carry out his normal activities. I must emphasise that the depression and the alcohol abuse will also prevent him working and it is quite clear that the back pain, the depression and the alcohol abuse are all working together to give him a poor prognosis".

Mr Court-Brown went on to express the view that had the pursuer not suffered an injury in January 1995 he would have thought that given his history of having some minor back pain before that this would slowly have worsened, but it wouldn't have been anything like as quickly as it did after the injury he had. Mr Court-Brown would have thought that on balance he would probably have taken into his mid-forties perhaps late forties before he was complaining of significant back pain.

[33]Mr Court-Brown was then referred to a number of reports prepared by an orthopaedic expert for the defenders, Mr Cochrane. He had seen these reports before. He noted that Mr Cochrane recorded that the pursuer tended to over-react to examinations. However Mr Court-Brown had confirmed that he found Mr Davidson to have been very genuine. MrCourt-Brown agreed that Mr Cochrane appeared to have come to the view that what the pursuer suffered in January 1995 was a soft tissue injury. In relation to that he said that such injuries tended to present in a different way than Mr Davidson's back pain had. Even having read Mr Cochrane's findings and conclusions he was still in no doubt that the accident in January 1995 caused an exacerbation of the degenerative spine condition.

[34]In cross-examination Mr Court-Brown was asked to explain how he could come to his initial diagnosis about a pre-existing degenerative condition without having seen the GP records. He explained that his original view had been that the degenerative changes were quiescent prior to the accident. That was based on the fact that the pursuer had told him that he had suffered no pain until that time. After he saw the records and saw that there had been pain that merely confirmed his diagnosis. Mr Court-Brown had stated, going back to his first report, No 5/1 of process that the pursuer had not mentioned to him at that time that he had had a back injury in a road traffic accident a few months prior to that examination. It would have been significant to Mr Court-Brown had he known about that. Mr Court-Brown accepted that it was possible that it was the road traffic accident which could have caused the recurrence of pain or exacerbated any existing pain. He thought that was very reasonable. Having been taken all through the medical records Mr Court-Brown accepted that the pursuer wasn't being totally honest in his dealings with him in that he clearly didn't tell him all the information which might have been relevant. Further he had not been told and was unaware until he gave his evidence that the pursuer had failed to attend at various appointments for physiotherapy and had failed to attend to implement certain prescriptions which he had been given. He was aware of the fact that the physiotherapy given to him at Penrith appeared to have benefited the pursuer but he was unaware that the pursuer had discontinued the regime of exercises recommended to him on that occasion. He did not find that particularly significant since this back condition can indeed respond to physiotherapy in the short term but there was really no evidence at all that the maintenance of physiotherapy year upon year made any difference to such a back problem at all.

[35]The next witness for the pursuer was Dr Alex Stewart, a consultant psychiatrist at Murrayfield Hospital. He had been involved in psychiatry since 1965. He had seen the pursuer twice. His first report was dated 23 March 1999 and was No 43/3 of process. For the purpose of preparing that report he had available to him for perusal a considerable number of documents. The pursuer was able to give Dr Stewart a very detailed history, including a history of the accident and the effect or effects which he said it had had upon him, a history of his family, a personal history, a marital history and a history of his relationship with alcohol. These were all referred to by Dr Stewart in his evidence by reading the relevant passages from his report. In relation to alcohol Dr Stewart explained that alcohol was in fact a depressant. It was very bad for someone who was depressed already and created a sort of vicious spiral. It was not easy to cut down on intake, especially during the first six months. Persons depressed frequently resorted to alcohol. Any medication given for depression was often counteracted by alcohol in fact. Dr Stewart noted that the pursuer had no pre-accident psychopathology. In referring to the pursuer's mental state examination at the time when Dr Stewart saw him, he noted that the pursuer was moderately severely depressed and became on occasions quite tearful. He noted that this was confirmed by a score of 27 on what was called a Montgomery Asberg Depression Rating Scale with a score of 20 and above being considered as a case of depression. An assessment on this scale was achieved by asking the patient 10 relevant questions and then applying to each of these a certain scale of values. He applied the test again when he saw the pursuer in October of that year and noted that the score had gone up from 27 to 33 which showed a trend. The test was objective as the patient did not know that the doctor was in fact doing the test and therefore did not know which answer gave a good or bad score. Dr Stewart found it significant that in May 1995 shortly after the accident there was a reference in the GP notes to the question of depression. He noted that as early as August 1996 the pursuer had been prescribed amitriptyline. That drug was an antidepressant but was sometimes used in pain clinics. It could have been prescribed then for back pain or depression or both. In psychiatric terms it was usually prescribed for more severe types of depression. It had certain unpleasant side effects including sedation, a dry mouth and bladder and constipation. A lot of patients discontinued it. The sedative effects were increased by alcohol. In relation to his post-accident psychiatric record, Dr Stewart noted that the pursuer was seen by Dr Pacett, a consultant psychiatrist on 6 January 1997. He had recommended that the amitriptyline should be discontinued and replaced by another antidepressant clomipramine. This had a less sedative effect but 100mgs was quite a high dose and might result in a lot of sweating. Apparently this particular drug proved unsuccessful and he was later placed on another antidepressant venlafaxine. This had fewer side effects. The dose which he was given was a standard dose but alcohol could counteract its effect. In a chapter of his report headed "Formulation" Dr Stewart expressed the following views:

"This man gives a history of moderately severe depression which has arisen on the basis of a back injury on 19 January 1995. There is no previous history of psychiatric illness prior to the accident. From his report his life has been significantly altered for the worse. Since the accident he has had to give up his chosen career as a fireman and baker and over the past five months he has been able to return to work as a representative, albeit with some restriction on his activities because of his inability to sit in a car for a prolonged period of time. Since recommencing work he had been moderating his alcohol intake but it is likely that he is in the early stages of alcohol dependence which has been exacerbated by his long period of unemployment between 19 January 1995 and November 1998."

In the final heading "Prognosis" Dr Stewart says:

"This man with no previous history of psychiatric illness has been considerably disabled from a psychiatric view by reason of his moderately severe depressive reaction. In my opinion he should respond to psychiatric treatment and in particular ongoing antidepressant therapy. There is some evidence indeed that the outlook from a psychiatric viewpoint is improving in that he appeared determined to make a success of his present employment despite the continuing back pain. It is likely too that there will be further improvement in his mental state with moderation of his alcohol intake."

In his second report dated 25 October 1999 (No 43/4 of process) Dr Stewart expressed the following opinion:

"Mr Davidson presents with a mixed picture of some gains particularly in his area of employment and reduction in alcohol intake. From his account his back is slightly less painful. His level of depression has increased slightly, probably as a result of the fact that he discontinued his antidepressant drug four months ago. He is still having difficulty coming to terms with the fact that he is no longer able to function as a fireman or even be employed as one because of his physical disability."

Dr Stewart was also referred to No 43/1 of process, a psychological report dated April 1998. He had seen that previously and agreed with a diagnosis expressed therein.

[36]In cross-examination Dr Stewart accepted that he did not recall any reference in any of the GP records which he had seen to any side effects from any of the drugs which had been prescribed for the pursuer. He further accepted that there was some evidence in the records that the pursuer had been deliberately not taking his medication. He also accepted that if it were the case that the pursuer had deliberately not taken suggested steps to improve his back condition and as a result of that his back had got worse, that might well have affected his mental condition also. He accepted that by the second time he saw the pursuer, although there had been an improvement in his back condition the depression had in fact been increased. He was aware that the pursuer was failing to take his medication. Dr Stewart was shown a report from Mr Tierney, No 45/1 of process. He accepted that as regards the various factors which may have led to any depression on the part of the pursuer the most important were his back pain and loss of employment. He also accepted that the factor inhibiting his improvement was his failure to take the drugs and his continuing to take alcohol.

[37]Rhona Patterson was a police officer by profession. She had a former relationship with the pursuer whom she met in 1990. They had bought a house together at 56 Lennox Gardens and paid one half of the mortgage each. She did not stay there all the time. They were not living together in January 1995. Prior to the accident the pursuer was very likeable, amiable, the life and soul of the party. He was a very kind person. He was very dedicated to the Fire Service and attended 95% of all calls in one year. He stayed in the bakers business because he was allowed by his employer to be a fire-fighter. After the accident he became withdrawn. His life was affected. Physically he could not do things. His personality altered. He became more aggressive. He did not go out much. He went back to work with the Fire Brigade in August 1996. After he retired altogether from the Fire Brigade he became even more withdrawn. He was depressed that he was not working. He had less income. He couldn't get around. He had pain in his back and couldn't stand or sit for long periods or do household activity. Before the accident he did most of the housework. He was very houseproud and did all the shopping and gardening. After the accident he needed held from her. She did chores for him and took him to the hospital. She did all the DSS forms for him. She had to help him in and out of the bath etc. He couldn't do that, even straight after the accident. Their relationship ended in 1995 but they continued to be friends. He got better after he had been to Penrith. The witness was still a crutch for the pursuer. Their relationship ended partly because of a change in his behaviour. He got into a fight once. Before the accident he took a drink. He was a social drinker. He did not drink during the week nor in the house. He went to the pub at the weekend where he liked to spend time with the Fire Brigade people. His drinking increased substantially and he got very drunk on occasion. She did not know how much he drank but other people commented upon it. That was out of character for him. She was then talking about the latter end of 1995. As far as the injections which he had at one time, it was she who took him into the hospital for them. He took them because he was desperate for his back to get better. She was of the view that he would have taken any treatment. The biggest factor in his post-accident condition was his loss of his fire brigade activity. She saw him after they split up and helped with his flat and his forms. It was an amicable separation. Retirement from the Fire Brigade was the last thing he wanted. He was very down about it. He was very disappointed as all hope had gone of going back. He was worse than he was before Penrith. In November 1998 he got work with telesales. She had not seen much of him since. He seemed a lot happier now that he was back in employment. There were financial difficulties between them about the time of the split. They had an overdraft at the bank which she had to pay. He couldn't pay the whole mortgage. He wanted the house. The house had to be sold in April 1996. She had stopped paying the mortgage. He couldn't seem to pay the mortgage by himself as he was not working. About that time he was drinking very heavily. That was a further stress on her. In cross-examination she agreed that they did not live together full-time. During the period of August to September 1995 their joint bank account became overdrawn and she had to pay the mortgage etc. She continued to pay her share. She was of the view that the pursuer must have been paying less than his share. Their relationship had been unstable before that. That had started prior to the accident and the relationship would have ended anyway. She knew he was getting money from the Fire Brigade. She could not remember if he got his wage from the baker. She was not aware that he was getting the same money after the accident as he had been before. She had assumed because of the bank position that it was less. He didn't go out with his family at weekends, he went out with her. The overdraft did not contribute to the break-up. His drinking was not due to a deterioration in their relationship. He didn't want them to split up but it was not the cause of his drinking. He had problems before and he did not drink at that time. He still had a number of friends and an active social life but not as much as he used to. He couldn't stay for long in pub, for example, because of the pain. She knew that he had been prescribed antidepressants and knew that he didn't take them. She was not aware that he had failed on occasions to attend treatment. She didn't think he believed he had a psychological or psychiatric problem. After the accident the pursuer didn't go out much. He was going out at the end of 1995 more often than she thought.

[38]The principal medical witness for the defenders was Jonathan Cochrane. He was a consultant orthopaedic surgeon and had experience in medical legal practice. He practised at the Murrayfield Hospital. He first examined the pursuer in March 1998. Production 22/1 was a report which he prepared at about that time. He too also saw the medical notes but only those relating to the period post-accident. As far as any back-history prior to the accident all that he was aware of at that time was that about 5 years before, that is to say in about 1993, the pursuer had suffered a back injury playing rugby which had cleared up in a short time. In his report he also presented a review of all the medical records which had been made available to him and he spoke to these in evidence also. In particular he accepted that there was an entry in the Western General Hospital Records for 9 November 1995 when it was thought that there was a suggestion of facet joint degeneration bilaterally. In Mr Cochrane's view such degeneration was only to be expected and was not related to the accident. Unlike Mr Court Brown, Mr Cochrane was aware of the road traffic accident on 14 April 1996 and was able to refer to production 10/4 in this regard. He noted that the result of that accident some short time before the accident which is the subject of this litigation, the diagnosis had been a soft tissue injury to the lower back. He noted that the pursuer did return to work in July 1996 but in his opinion he could have returned before that. From his examination of the pursuer in March 1998, Mr Cochrane concluded that there really was nothing wrong with him on clinical examination. At page 10 of his report Mr Cochrane concluded as follows:-

"All in all it would be my opinion that against the background of previous back problems which had been associated with left nerve root pain that during the course of the relevant accident Mr Davidson sustained soft tissue injury to his lumbar spinal musculature and possibly minor traction lesion to lumber or sacral nerve. I would have anticipated that any soft tissue muscle injury would have resolved within five to six months of the relevant incident at most, any nerve traction symptoms would have persisted for twelve months or so. In my opinion no sequelae of the relevant accident should have precluded Mr Davidson if he was so motivated from returning to his previous employment by April 1996, his road traffic accident that month causing further soft tissue injury to lower back may have been caused delay in his being able to return to employment until August 1996".

[39]Mr Cochrane saw the pursuer again in March 1999 and prepared a second report which is No 33/1 of process. By this time Mr Cochrane had seen those clinical notes which related to the period before the accident in 1995 which had not previously been available to him. He also reviewed these notes in his report. This further information did not lead him to change his earlier diagnosis.

[40]Mr Cochrane had also seen the various reports prepared by Mr Court-Brown. In relation to the first of these, Mr Court-Brown's report of June 1996 Mr Cochrane accepted that the pursuer had not told him that the phenol injections had helped him. He noted that the pursuer had given a false pre-accident history to Mr Court-Brown which he thought affected Mr Court-Brown's ability to make a proper diagnosis. All in all he did not agree with Mr Court-Brown's opinion mainly because Mr Court-Brown had not been aware of his previous back history and had been told that injections had helped him. In relation to Mr Court-Brown's second report of February 1998 Mr Cochrane observed that again the pursuer had told him that there had been no back ache prior to the accident. He noted that on examination there appeared to be greater restriction of movement than before, but again expressed the opinion that this had nothing to do with the accident in 1995. It could have been a degeneration of facet joints, but he would have expected to have seen evidence of this on both x-rays and CT scans. He examined the x-rays and saw no mutli-level degeneration of facet joints. There were some changes L5, but these were simply consistent with the pursuer's age. Again he disagreed with Mr Court-Brown's opinion and expressed the view that he thought the symptoms should improve if the depression from which the pursuer was suffering had left him by that stage. Mr Court-Brown's third report was dated March 1999, which was shortly after Mr Cochrane had seen the pursuer. As to the present condition which Mr Court-Brown found at that time, Mr Cochrane accepted that the symptoms were similar to those which he had been given by the pursuer. However, he expressed the view that the pursuer's symptoms were largely psychosomatic.

[41]In cross-examination Mr Cochrane accepted that at the present time the pursuer did have mild degenerative changes, but these were not from the accident. The symptoms which the pursuer expressed were out of all proportion to any injury he had suffered at that time. He may well have had pain, but this was magnified by both the depression and the alcohol. Mr Cochrane accepted that as time goes by degenerative changes will gradually deteriorate even without back problems. On the basis of the x-rays that he had seen, the pursuer had many years of work left, possibly to the age of 55. Very few persons did heavy work beyond the age of 55. Mr Cochrane was then taken through the pre-accident medical records in some detail. At the end of an extensive cross-examination on these records he accepted that there could have been exacerbation of degenerative changes at the same time as a muscle injury. He expressed the view that such a muscle strain would have taken five or six months to clear up. Any nerve injury may have taken up to twelve months but would have been improving all the time. Accordingly the pursuer could well have been back to work in January of 1996, although treatment may have continued until about April. Mr Cochrane did not believe the pursuer as to the level of his symptoms mainly because he had lied about his pre-accident back pain. He had a strong suspicion that the pursuer was deliberately trying to conceal relevant matters. All in all he suspected that the pursuer was a malingerer. This was a man who had problems with alcohol and depression, all of which he had from back pain. He was a man who refused spinal treatment and also treatment for depression. Mr Cochrane accepted that a twisting injury such as described by the pursuer could have exacerbated pre-existing degenerative changes but did not think it did so in the pursuer's case. That was possible, but not probable. There was only a small possibility that that had actually happened. One of the letters received by the general practitioner after the accident were then put to Mr Cochrane from the general practitioner's records, No.10/4 of process. In particular, it was put to him that two different doctors, Dr Statham and Dr Jenkinson, had expressed the view that there may well have been facet joint changes and that the pursuer's symptoms may have been due to that. Mr Cochrane also accepted that neither of these doctors mentioned the diagnosis which he, Mr Cochrane, had made.

[42]In re-examination Mr Cochrane affirmed that he had looked at the pursuer's x-rays and had seen no facet joint degeneration. In his opinion such a degeneration would have been observable on the x-rays.

[43]The next witness for the defenders was Ian Tierney, a chartered clinical psychologist. He was asked to conduct a psychological assessment and to prepare a psychological report on the effects, if any, of the accident at work on 19 January 1995 sustained by Mr Davidson. The pursuer attended at the Keil Centre in Edinburgh on Thursday 9 April when he was seen by Mr Tierney, who subsequent prepared a report on the pursuer's condition which is No.45/1 of process. His opinion expressed in that report was as follows:

"While I do not have enough evidence about his psychological functioning in his early years, I gained an impression that he has suffered episodic low mood for many years. It would seem that he has used sport in its many forms as a focus of his attention as a way of keeping fit for an occupation which he loved (i.e. retained firefighting) and as a focus for his social life. Immediately after the incident in January 1995 all of these 'coping mechanisms' which in my opinion allowed him to function while experiencing a mild to moderate dysthymic condition were removed resulting initially in high levels of anxiety but which he self-medicated using grossly excessive alcohol and eventually leading on to a severe major depressive disorder. Dysthymia is a chronic depression of mood lasting at least several years which is not sufficiently severe or in which individual episodes are not sufficiently prolonged to justify diagnosis of severe, moderate or mild recurrent depressive disorder. Mr Davidson's conscientiousness with regard to his work and his extreme orderliness allied to very categorical 'black and white' thinking has led him to a sense of injustice against the fire department and to some extent a sense of alienation from those that are close to him. While in some sense the minor accident that occurred in January 1995 could be seen as a precursor to all these events, the various factors that had produced the present state are of long-standing related to a rather traumatic early childhood.

While many attempts have been made to treat this man's severe depression, his failure to comply in taking medication on a regular basis has meant that there has been no real trial of effective medication. It is also my firm opinion that because of this man's combination of an obsessional and dysthymic personality he would benefit greatly from cognitive therapy from a clinical psychologist if this could be arranged. He shows common patterns of thought which are known to sustain depression and which will be amenable to change with structured advice."

[44]Mr Tierney prepared a second report in January 1999, No.45/2 of process. He was not informed by the pursuer at this time that the pursuer was in fact in employment. He would have been very surprised given what he found. He found that the pursuer's condition had in fact worsened since the previous occasion on which he had seen him. He thought at that time that the pursuer was too sick to hold down a job and that it was commendable that he was in fact working, which demonstrated a degree of stoicism.

Submissions on Liability

(a)Pursuer

[45] Mr Lloyd, counsel for the pursuer, accepted at the outset of his submissions that so far as liability was concerned the dispute between the parties centred on the condition of the wind that evening and whether the decision by Officer Skorupa to proceed with the ladder drill was negligent. He further submitted that at the end of the day there was no real dispute between the parties that a gust of wind caught the head of the ladder bringing about its movement. Thus the wind was certainly the immediate precipitating factor in the movement of the head. The loss of control of the ladder had to be seen in its context. All of the witnesses, according to Mr Lloyd, gave evidence that in the normal course of events there would be no loss of control of the ladder. With an experienced crew this would be true, even in windy conditions at least short of gale force. Mr Lloyd then proceeded to review the evidence of the witnesses in relation to the condition of the wind. He dealt particularly with the evidence of Mr Tavony, since he was an expert on such matters. Mr Lloyd accepted on the basis of Mr Tavony's evidence that any hypothesis he put to this witness or to others to the effect that the winds might be "gusting to gale or near gale force" would be misleading and illegitimate. He also accepted that Mr Tavony's evidence was to the effect that the weather at Linlithgow at the time of the accident would not be abnormally windy. What he meant by that, however, had to be seen in its context. He accepted that the wind might be described as "blustery". For the hour commencing 7.00pm, No.12/8 of process, showed that the average wind-speed was 13 knots. That would be described as "a moderate breeze". However, it was important to note that a moderate breeze represented above average windiness. It had to be accepted that the wind was dying down from about 6.45pm. It was apparent that at about 7.30pm, according to Mr Lloyd, the wind was gusting to speeds of about 20 knots. When the wind was gusting, gusts and lulls were happening all the time and that was a matter which would be within anyone's normal experience. This might be particularly relevant to Station Officer Skorupa, who described himself as a fisherman. Mr Tavony recognised that a building such as the drill tower might create some turbulence causing the wind to, as it were, "scoot" round the corner. Mr Lloyd suggested that it was important in the context of Station Officer Skorupa's evidence that Mr Tavony had expressed the view that between 6.00 and 7.00pm in Linlithgow it would be "noticeably windy". Officer Skorupa had stated that during the day while he was in Edinburgh he had been paying some attention to the wind, considering whether he was going to be able to continue with the ladder drills which had been arranged for later that evening. Before leaving for home and then Linlithgow he thought that the winds were too high. He professed surprise in arriving at Linlithgow between 6.40 and 6.45pm and finding that the wind amounted to "literally nothing". According to him there would at best have been only slight movement in the trees. This is to be contrasted with Mr Tavony's views that conditions would be "noticeably windy". Mr Lloyd suggested that it was impossible to square Station Officer Skorupa's evidence with the evidence of the other fire-fighters or Mr Tavony. He suggested that on this point, at least, Officer Skorupa's evidence could not be accepted as reliable. Station Officer Skorupa had been pressed as to whether he had noticed any change from the time of his arrival to the time of the drill being conducted. He maintained that there had been no real change. Having regard to all the evidence and the state of the wind, Mr Lloyd submitted that the court should find that it was "blustery". That was perhaps necessarily an imprecise term. Nonetheless it might be useful. The court should hold that the wind was gusting and that the wind-speed was above average (even for the time of the year). So holding would be consistent with the evidence of the lay witnesses and also Mr Tavony. It would of course be inconsistent with the evidence of Station Office Skorupa. While the wind-speed was falling, the wind was still gusting at the time of the accident, certainly when the instruction was given to commence the drill. Having regard to his own evidence and the evidence of Mr Tavony to the effect that the wind would be gusting "all the time", the court should hold also that wind conditions were such that it was foreseeable to Officer Skorupa when he instructed the drill that the crew would have to do so in a gusting wind of the sort described.

[46]Mr Lloyd then went on to deal with the pursuer's case of fault against Office Skorupa, the averments in relation to which are set out in condescendence 4. Mr Lloyd explained that the pursuer's case against Officer Skorupa was not simply that it was too windy to carry out the L3 ladder drill. The case was, rather, that it was too windy to do that drill (i.e. L3 to full extension) with that crew (i.e. the crew with Scott on the props) at that time (i.e. given the condition of the wind which obtained). He pointed out that the averments of knowledge at p.13C-D had to be read as relating back to the averments at p.8B-C. There was an averment there "the risk of the ladder when so extended might be caught by the wind rendering the ladder uncontrollable by the normal crew for the drill was obvious". Mr Lloyd accepted that he could not really suggest that the pursuer had proved that averment when the evidence was that the condition of the wind was as described above and that a normal crew would not lose control. Against that, however, said Mr Lloyd it was accepted on all hands that carrying out a L3 ladder drill to full extension in windy conditions gave rise to a risk of loss of control and consequent injury. Indeed, as to that risk, Officer Skorupa himself had stated "one of the problems, or one of the things, with a 13.5 metre ladder, it is susceptible to gusts of wind, it's a well-known hazard with the ladder, and the conditions that day, you know, I was aware that there was always a possibility that there might be a gust of wind". Thus, submitted Mr Lloyd, the evidence was to the effect that there was a risk to the normal crew, a risk known to Officer Skorupa, albeit a risk which they would normally control. The specific averments of fault were set out at p.13D-E of the Record. Their structure was as follows:

(i)eliminate use of the 13.5 metre ladder;

(ii)alternatively instruct that the ladder be pitched only to the second floor of the tower;

(iii)in any event, instruct the use of additional personnel on the ladder props; or

(iv)alternatively wait until the wind had died down before conducting the drill.

As Mr Lloyd put it, the focus of the pursuer's evidence was really on number (ii), in his submission, a breach of that duty had been established, namely, a failure to instruct that the ladder be pitched only to the second floor of the tower as opposed to the third.

[47]Mr Lloyd then dealt with an objection that was taken to questions asked by him of the pursuer (see Notes of Evidence, Vol.I, pps.38-46). Objection had been taken to questions asked of the pursuer to the effect that the loss of control might have been caused or contributed to by the inexperience of Mr Scott. Objection was taken to that line of evidence on the basis that there was no case for such a line on Record. Mr Lloyd had contended in reply to that objection that the averments of fault in condescendence 4 had to be read along with two averments on p.8 of the Record, C-D to this effect, "the risk that the head of the ladder, when so extended, might be caught by the wind, rendering the ladder uncontrollable by the normal crew for the drill, was obvious. The said risk was compounded by the presence of an inexperienced fire-fighter as part of the crew, such as fire-fighter Scott." Even in that context, said Mr Lloyd, the inexperience of Mr Scott was relevant to the question of the case on Record concerning the carrying out of the drill in the way in which it was carried out in the weather conditions which prevailed. In his closing submissions, Mr Lloyd adhered to what he had said in the course of the objection. He submitted that the position was covered by the averments at p.8 anent the averments of duty at p.13D-E where it was said that the point of pitching the ladder to the second floor was to increase the ability of the crew to retain control. That had to be seen in the context of the averment that the risk of loss of control was compounded by the presence of Scott. In Mr Lloyd's submission the objection ought to be repelled.

[48]Mr Lloyd then turned to the standard of care to be expected in Mr Skorupa's decision to hold the drill in the manner in which it was held. In this context he pointed out that the averment on p.8 of the Record C-D to this effect "as the officer in charge of the drill it was the responsibility of Station Officer Skorupa to ensure that the drill was carried out in a safe manner", was admitted at p.10E. Mr Lloyd then went through the evidence of the various witnesses who spoke to which factors were relevant to take into account in deciding when and how to conduct a ladder training for recruits. In particular, he contrasted the views expressed by Mr Skorupa himself with those of the witnesses Wyners, Torrie and Sharp. Mr Lloyd submitted that Station Office Skorupa knew the risks involved in the drill, knew the risks relating to the recruit, knew or ought to have known the wind conditions and he accepted the risk benefit approach set out by Mr Torrie. He considered his own duty to minimise the risks to the recruits. It was Station Officer Skorupa who decided to proceed with the drill in the particular circumstances which obtained. He exposed the pursuer to a foreseeable risk of injury. He is to be judged on the ordinary principles of negligence, nothing more. He failed to take reasonable care by conducting the L3 drill with that crew in those conditions for the end spoken to in evidence. Even if negligence were not proved against Skorupa, Mr Lloyd then considered whether the pursuer might yet succeed. The evidence was overwhelming to the effect that in normal circumstances when an L3 drill was being carried out, control of the ladder was not lost. Further, the same drill had been carried out moments before, a fact upon which the defenders founded. The pursuer had never been involved in a situation involving loss of control of the ladder despite his experience. At p.8C-D the pursuer averred that it was Skorupa's responsibility to ensure that the drill was carried out in a safe manner. That averment was admitted at p.10E. Mr Lloyd submitted that the situation was thus similar to those which obtained in Mars v Glasgow Corporation 1940 S.C. 202 and O'Hara v Central SMT 1941 S.C. 363. Against a background of control normally being retained, the admitted loss of control established a prima facie case against Skorupa standing the admission at p.10E. The onus then transferred to the defenders to explain the occurrence. They did not do so and indeed made no attempt to do so. The pursuer had established in evidence, or by inference, the fault of Skorupa and the first plea-in-law should be sustained quoad vicarious liability. Mr Lloyd accepted at this stage that the esto case pled on p.14 of the Record B-E did not arise.

[49]Mr Lloyd then turned to the manual handling operations regulations case pled at p.15D to p.16E. He said that all or virtually all of the witnesses spoke to the foreseeable possibility of control of the ladder being lost even by an experienced crew on a calm night. That was something which would not normally happen, however. Once various other factors were taken into account, such as the presence of a recruit on the props never having handled a ladder before and all of this taking place on a blustery night, the risk of loss of control increased. Mr Lloyd submitted that there was no real dispute that the pursuer was exposed to a risk of injury. (Cullen v North Lanarkshire Council 1998 S.C. 451). The fact that the pursuer only made out a case under Regulation 4(1)(b) of the Regulations in holding acceptance on his part that some exposure to risk was necessary, since the whole object was to gain familiarisation of ladders by handling them. The question was, how should this be done? The onus was on the defenders to show that they took appropriate steps to reduce the risk of injury to the lowest level practicable (Logan v Strathclyde Fire Board (unreported Lord Eassie 12 January 1999)). It must be apparent from the evidence that they did no such thing. The defenders exposed the pursuer to a risk of injury which materialised. In Mr Lloyd's submission the pursuer had established this statutory case.

[50]Finally, upon the question of liability Mr Lloyd dealt with the defenders' averments concerning contributory negligence, about which he had little to say. He pointed out that there was at least originally no plea to contributory negligence. The factual averments underlying the case of contributory negligence were however set out at p.15A-D. The case was predicated upon the pursuer having been trained and instructed to "lean into the ladder" from his position on the ladder jack. In cross-examination the pursuer denied ever having received any such training or instruction. He had never before experienced the loss of a ladder. No evidence was led by the defenders as to the nature and extent of any training he had received. The pursuer had maintained that the action he took was and had to be an immediate reaction to the movement of the head of the ladder. Such a reaction would not amount to contributory negligence, especially in the absence of any formal training or instruction. The drill book, No.12/3 of process, prescribed what should be done in the event of loss of control. This was discussed with the pursuer (see Notes of Evidence p.275D-E). The pursuer tried to follow the course of action which so far as he was aware was in conformity with the drill book. There was not, so far as Mr Lloyd was aware, any medical evidence to the effect that had the pursuer "leaned in" as opposed to doing what he did, namely jumping on the jack bar, this would have made any difference to the injury which he sustained. The defenders had failed to make out any cogent contributory negligence case. In conclusion, Mr Lloyd submitted that the court should sustain the pursuer's first plea-in-law and award damages .

(b)Defenders

[51]Mr Weir, for the defenders, accepted that the allegations of negligence were set out in Article 4 of condescendence. They ascribed to the defenders vicarious liability for the accident in the omission of Station Officer Skorupa. In the adverse weather conditions which allegedly prevailed, the pursuer avers that Skorupa should have given instructions that certain special precautions be taken before commencement of the drill. These precautions were specified on pps.9A-9D and translated into the whole pursuer's common law case in Article 4. Mr Weir submitted that the whole of the pursuer's principal common law case depended on whether the pursuer had proved as a matter of fact that the weather conditions were adverse in the sense that they are described on Record at the time of the accident. The pursuer's pleadings variously described the weather conditions as "a windy night" and "very windy conditions". At p.8A-B the pursuer avers:

"From about midday on said date weather conditions had become increasingly windy, with strong gusts of wind, and changes in wind direction. In the period from 1700 to 2000 hours wind speed was at its highest with the strongest gusts."

Mr Weir agreed with counsel for the pursuer that the balance of evidence established that the head of the ladder was moved by a gust of wind. He then described the various passages of evidence which established that fact. He submitted that the court had before it no competent evidence that the head of the ladder moved for any reason other than a gust of wind. In this respect the defenders were justified in taking timeous objection to the evidence which suggested an alternative cause for the head of the ladder to move. Mr Weir then referred to the various passages in the evidence at which this objection was taken and renewed. Mr Weir further submitted that in all the circumstances the general question to be asked was whether Skorupa was negligent in instructing and proceeding with the ladder drill as he did. In answering that question Mr Weir suggested that the following passages of evidence were pertinent:

(1)The evidence of Senior Divisional Officer Torrie, who was the defenders' head of training, in which Mr Torrie looked upon the decision of a training officer to undertake a particular drill in a particular set of weather conditions as a matter of judgement for that officer based on the training officer's experience of handling a ladder himself and observing crews handling ladders.

(2)The evidence of Stanley Wyners to the effect that what constituted "adverse weather conditions" for the purpose of the Fire Service Drill Book was again a matter of judgement.

(3)The evidence of the weather conditions on the night and at the time of the accident. The testimony of Richard Tavony, given by reference to his report No.12/8 of process showed that the averment of the pursuer at p.8B referred to above was, and is, ill-founded. The wind-speed was not at its highest between 1700 and 2000 hours. On the contrary the evidence disclosed that by the time of the accident (which for the purposes of Mr Weir's submissions was accepted as about 1930 hours) the wind had considerably moderated and was no more than light to moderate in strength. If someone were travelling from Edinburgh to Linlithgow between 1800 and 1900 they would have found it noticeably windy, as Mr Skorupa did. Between 1900 and 2000 the eye of the depression would have passed over Linlithgow. This did result in a steady decrease in the wind from 1800 to between 2000 and 2100. In cross-examination Mr Tavony agreed that the wind was moderate and the highest gust at Turnhouse at about 1930 was about 20 knots and that it was not abnormally windy at all. Reference was also made to Production 12/8(a).

(4)The evidence of Skorupa, supported by Mr Tavony, to the effect that by the time he reached Linlithgow the wind had decreased to such an extent that in the exercise of his judgement Skorupa decided to proceed with the ladder drill. Reference was also made to Production 12/9. Skorupa was himself an officer of considerable experience having 34 years service. This was recognised by Mr Torrie in his evidence.

(5)The absence of any evidence that any other fire-fighters, including Station Officer Gray, had any reservations about performing the drill.

(6)The evidence of Skorupa regarding the provision of an experienced crew and additional experienced personnel for the drill. In this context Mr Weir also referred to the evidence of Station Officer Gray.

(7)The briefing provided before the drill commenced, the subsequent staged demonstration and the involvement of fire-fighter Scott in this drill.

(8)The evidence of Skorupa that he continued to keep an eye on the weather for deterioration.

(9)The evidence of John Sharp, senior instructor at the Fire Service Training School in Gullane (i) that the decision whether to proceed with a drill is one for the discretion of the individual squad instructor who undertakes a dynamic risk assessment at the commencement of the exercise and throughout its duration so that if squad instructors feel that it is too windy to carry out a drill, then ladder drills would not be done; and (ii) that at the training school a full team of recruits train on the 13.5 metre ladder.

(10)The evidence of Mr Torrie that the recruits have to be exposed to certain risks in their training and the evidence to similar effect from Skorupa. Reference was also made to Production 12/7 of process ("Training for Hazardous Occupations").

Mr Weir submitted that in the light of the foregoing evidence the risk inherent in actual or simulated activity was managed and controlled by appropriate steps taken by Skorupa.

[52]Mr Weir then dealt with the evidence of the pursuer's witness Stanley Wyness who gave evidence in support of the necessity for taking the five precautions desiderated in Article 3 of condescendence, p.9A-D. Mr Weir submitted that all of these precautions were predicated on the assumption that it was a very windy night. The evidence did not support the pursuer's case. Accordingly, there was no need to take the precautions averred even if those precautions were in the circumstances reasonably practicable. Mr Wyness also offered the view that it was inappropriate to extend the ladder to the third floor with a new recruit in the team whatever the weather. Mr Weir submitted that Mr Wyness' evidence in this respect was confusing, unsatisfactory and unreliable. On a final analysis, Mr Wyness was giving evidence as to whether in the whole circumstances Skorupa had been negligent on the night of the accident. What Mr Wyness meant by negligence was itself unclear. Mr Wyness gave no evidence to the effect that by instructing L3 on the night of the accident Skorupa was ordering something which no training officer in any other fire brigade exercising reasonable care would have ordered (Morton v William Dickson Ltd 1909 S.C. 807; Paris v Stepney Borough Council 1951 A.C. 367; Potec v Edinburgh Corporation 1964 S.C. (H.L.) 1). While the absence of such evidence of practice was not conclusive (Cavanagh v Ulster Weaving Co Ltd 1960 A.C. 145; Macdonald v Scottish Stamping and Engineering Co Ltd 1972 S.L.T. (Notes) 73). It did not detract from the weight which should be given to the evidence of Mr Wyners. There was in any event the evidence referred to above to the effect that recruits at Gullane would extend the L3 ladder to the third floor level in basic training, albeit in two stages, the first stage being concerned with proper positioning of the A frame. For all of the above reasons it was submitted that there was no negligence on the part of Skorupa. There was no actual reason to foresee an accident of the kind averred. It was not an abnormally windy night. The evidence disclosed that Skorupa had taken full account of the weather and decided that it did not create a foreseeable risk of injury. He may have been wrong. Being wrong does not amount to negligence.

[53]Mr Weir then went on to deal with the pursuer's esto case but as the pursuer's counsel did not seek to rely on that case I have no need to deal with Mr Weir's submissions about it. Mr Weir then turned to the question of contributory negligence. He sought to have the Record amended in terms of a Minute of Amendment which he lodged at the bar inserting a plea to the effect that any damages should be reduced on the basis of the pursuer's own negligence. Despite opposition I allowed the Record to be amended by insertion of such a plea on the basis that averments in support of it were already part of the Condescendence. Mr Weir submitted that even if the defenders or Mr Skorupa had been negligent the pursuer contributed to his own injury. It was accepted that control of the head the ladder was lost. The pursuer conceded in his evidence that in the event of the head of the ladder being lost the pursuer was trained to bring the head into the building by leaning into the ladder. It is clear from his own evidence that the pursuer did not do this. Rather he jumped onto or straddled the jack bar and tried to twist the ladder to bring the head back to the window ledge. It was the twisting which the pursuer claimed in that passage of evidence to have caused his injury. It was accepted on all sides that the pursuer was an experienced fire-fighter. He should have leant into the ladder. Mr Weir suggested that in those circumstances a finding of at least 20% contributory negligence on the part of the pursuer should be made.

[54]Finally, Mr Weir dealt with the pursuer's case under the Manual Handling Operations Regulations 1992. He submitted that an assessment in terms of the 1992 Regulations was carried out by the defenders in April 1994 (No 31/3 of process). Evidence in respect of this production and its contents was given by Skorupa. The risk assessment was not itself subject of criticism on behalf of the pursuer in cross-examination. Mr Weir made particular reference to the section of the assessment entitled "Implications for Fire Service Ladders". The officers in charge were advised that they must make an assessment which should take into account the task, the load, the working environment and individual capability. As officer in charge of the course, Skorupa did all of these things. As the evidence already referred to discloses he took into account all relevant factors namely the weather, the experience of personnel involved in the drill, the risks involved in the drill (including the briefing of personnel and keeping a watch on the weather conditions) and the position of additional personnel. Mr Weir submitted that the precautions desiderated by the pursuer would have defeated the purpose of the drill. In his evidence Mr Skorupa spoke to the contents of No 12/7 of process ("Training for Hazardous Occupations"). Paragraph 7 of that publication recognised that it was necessary deliberately to expose firemen to the risks on the training ground, provided that all else was done by way of supervision and by the provision of safeguards to ensure that overall arrangements are as safe as they can possibly be made. Accordingly, esto the drill L3 carried with it a risk of injury, Mr Weir submitted that some element of risk was acceptable and that the precautions referred to in paragraph 4.2 were such that the defenders, and Skorupa in particular, fulfilled all statutory duties incumbent on them in the circumstances. In any event the risk of injury in the context of the averred statutory case was dependent on the pursuer establishing that the weather conditions were such as averred in the pursuer's principal case. The weather conditions were a crucial part of the factual matrix unpinning the pursuer's case that there was a risk of injury. For the reasons given above the pursuer's averments regarding the wind conditions on the night of the accident were not supported by the evidence. It followed that the pursuer had failed to make out that there was a risk of injury insofar as that had been defined by the averments which he himself made. The statutory case therefore according to Mr Weir failed.

Submissions on Damages

(a) Pursuer

[55]Mr Lloyd again submitted detailed written submissions on the question of damages. They commenced by dealing with the relevant evidence in the case and firstly with the evidence of the pursuer. Mr Lloyd suggested that in his evidence the pursuer described the nature and extent of his symptoms of back pain and depression. He indicated that when he attended St John's Hospital he had pain in his back going down his left leg. This was confirmed from the accident and emergency notes. He attended thereafter for physiotherapy at St John's and Linlithgow Health Centre. Significantly, in the light of Mr Cochrane's evidence, the pursuer said that he derived no benefit from physiotherapy. He was referred to Mr Statham, a consultant neurosurgeon at the Western General Hospital. He underwent a myelogram and a CT scan, which excluded disc prolapse. He was then referred to the pain clinic where in March 1996 he underwent facet joint injections at the hand of Dr Jenkinson, consultant anaesthetist. The myelogram and the facet joint injections were both very painful. He thought that the injections had been of assistance, though not at first. The period after the injections coincided with him attending rehabilitation, via the Fire Brigade, at Penrith from 26 May to 8 June 1996. Mr Court Brown saw him for medical legal purposes, on 25 June 1996, noted him as stating that the facet joint injections had been of assistance. The pursuer freely accepted that when he returned from Penrith the condition of his back was very much improved. Prior to that he described his back condition as "terrible". He had difficulty with walking and had to give up his sports of football, rugby, badminton, volleyball and hockey. Asked to described the nature of his pain, he said that the pain came on if he stood in one position for any length of time such as when having a shave. If he stood like that for ten minutes, or sat in one position for a similar time, this prompted pain in his back. His sleep was disturbed by back pain up to the time he finished at Penrith. Although he was very much improved at the end of this time he was noted on 7 June 1996 (occupational health records No 31/1 of process) still to have problems with short walks. At some point prior to his return to work in August 1996 the pursuer began to drink heavily and became depressed. He was unable to remember the precise timescale of these events but it was clear that it was prior to August 1996. He gave us the reason for his heavy drinking and depression that he loved his job in the Fire Brigade and was "down" about being able to do it. All of the Linlithgow Fire Fighters who gave evidence and his girlfriend of the time, Rhona Paterson, confirmed the pursuer's love of his job. The same was true of Dr Stewart and Mr Tierney who spoke to the aetiology of his drinking and depression. Following his return to work as a baker his symptoms recurred. The pursuer viewed the nature of his pain then as the same as before. He was retired from the Fire Brigade effective from May 1997 following a recommendation from the Brigade Medical Adviser. The pursuer was described by Mr Tierney as something of a perfectionist. He described himself how his second period of absence made him feel he would never be the same again. This clearly had an impact upon him mentally. He was referred for psychiatric treatment attending in January 1997. He underwent a second set of facet joint injections in August 1997. These were of no benefit. By that time of course his depression was advancing. Despite his condition he managed to find alternative work commencing at the beginning of November 1998 canvassing energy contracts. He was in similar work at the time of the Proof.

[56]Mr Lloyd then dealt with the evidence of Rhona Paterson who said that she had met the pursuer in about August 1990 and was living with him at the date of the accident. They had together bought a house. She had paid half the mortgage. The relationship ended, she said, about the end of 1995/beginning of 1996. So far as she was concerned the relationship would likely have ended anyway regardless of any post-accident sequelae. Prior to the accident she described the pursuer as a likeable/amiable character who was very dedicated to the Fire Brigade to the point that she would end up going to weddings alone if he were on a call out. She spoke to the pursuer's difficulty in walking and how he became more aggressive and socially withdrawn. He became much worse after his retirement from the Fire Brigade, but she traced the onset of his depression to around three to four months post-accident. He was in pain, unable to attend to housework, in which he took a pride, and required assistance from her. She spoke also to his substantial increased drinking. In cross-examination she spoke to the nature of the pursuer's symptoms in 1995, these being that he could only stand for so long, sit for so long without being in a great deal of pain. This description (given also by the pursuer) as important in considering the orthopaedic evidence.

[57]Mr Lloyd then turned to the evidence of Mr Court Brown who saw the pursuer on three different occasions, 25 June 1996, 10 February 1998 and 11 March 1999. Mr Lloyd referred to Mr Court Brown's opinion that the effect of the accident at work on 19 January 1995 was to exacerbate, or produce a flare-up of symptoms from an underlying condition of degenerative changes in the pursuer's lumbar spine. When he first saw the pursuer on 25 June 1996 he had available to him only post-accident GP records together with hospital records. He also took x-rays for the purpose of his report. The x-rays were not produced but Mr Court Brown reported them as having shown "only very minor degenerative changes". He arrived at his diagnosis on the basis of the history he obtained from the pursuer and from the "then" available notes and the x-rays. He considered that the history of symptoms were characteristic of degeneration in the spine rather than some (other) straightforward consequence of the accident. He stated that the degenerative changes mainly involved the facet joints. Although he did not say so in his reports, it was apparent in his evidence that the degenerative changes to which he was referring were at L4/5 and L5/S1 and encompassed both the discs and the related facet joints. The pursuer had been off work for some 18 months when Mr Court Brown first saw him on 25 June 1996. Mr Court Brown stated in his report that the medical records then available confirmed the story given by the pursuer. In evidence he said that the pursuer had told him that he had been having pain in his left buttock and thigh "for about 15 months". He was referred to the relevant entries in the GP records and those of St John's Hospital for the period from 19 January 1995 through to the date of his examination. By 25 June 1996 the condition of the pursuer's back was very much improved. As a consequence Mr Court Brown's examination findings were virtually normal, recording only some reduction of spinal extension. He noted however that the pursuer still had some ongoing complaints. He thought that these complaints were not consistent with his examination findings. He did notice a slight diminution in the pursuer's left ankle jerk. Noteworthy however, was his description of the pursuer's complaints as "mechanical back discomfort" and the history he noted of improvement following facet joint injections at the Western General in March 1996. Mr Court Brown considered that the original referral to physiotherapy at St John's/Linlithgow had not done much good whereas there had been improvement after the facet joint injections. He thought the prognosis was good. The pursuer was intending to return to work in about three or four weeks. In the event he returned to work at the beginning of August 1996.

[58]Mr Lloyd submitted that Mr Court Brown's opinion as to diagnosis had not altered over his second and third reports. He remained of the view that the correct diagnosis was an exacerbation of underlying degenerative changes. What did change was the prognosis. When seen in February 1998 the pursuer was found to be in a worse condition on examination than he had been in June 1996. The pursuer's subjective complaints were greater. Significantly Mr Court Brown noted that the pursuer was "somewhat depressed" and said so in evidence. By February 1998 of course he had been retired from the Fire Brigade and had been receiving psychiatric treatment since January 1997. Although Mr Court Brown noted that the second lot of facet joint injections in August 1997 had not produced any benefit, he did not depart from his diagnosis. In relation to prognosis he said in his report that the pursuer's pain was likely to continue for the foreseeable future. In evidence he said "It is not unusual for the pain to go on for quite a long time". He considered that by February 1998 drinking and depression were compounding the pursuer's back problem. When seen in March 1999 the pursuer was still thought by Mr Court Brown to be suffering from mechanical back pain. The most common cause for such a condition was degenerative disease of the spine or osteo-arthritis of the lumbar spine. On the third occasion he saw him Mr Court Brown had sight of the pursuer's pre-accident GP records. He reviewed these records in evidence and saw no reason to alter his opinion regarding diagnosis. He made this especially clear in cross-examination and in re-examination he said "So I think the most likely thing is that he has just had sequentially worse attacks of low back pain over the period of time before the accident and the accident has merely worsened this tendency." While he stated in his report and in evidence that such exacerbations would normally be expected to be resolved in three to six months, he recognised that such matters were variable. Some people did not get better and in the pursuer's case depression and alcohol problems were factors in his continuing complaints.

[59]From that evidence given by Mr Court Brown, Mr Lloyd carefully pointed out that Mr Court Brown had initially thought from the history and the x-rays he took that the effect of the accident was to exacerbate the underlying degeneration in the pursuer's spine. He did not depart one step from that, even under cross-examination. He maintained the same diagnosis. His diagnosis was grounded in the existence of degenerative changes at L4/L5 and L5/S1 levels and the character and quality of the symptoms suffered by the pursuer as told to Mr Court Brown and evidenced in the medical records. Mr Court Brown viewed these symptoms as being characteristic of mechanical low back pain. He described mechanical back pain as pains felt in the left buttock and left thigh exacerbated by standing. This leads to the sufferer moving around fairly frequently to try to get pain relief. That is precisely the description of symptoms given by the pursuer himself and corroborated by Rhona Paterson in the immediate post-accident period. In Mr Court Brown's view to the extent that the pursuer's back problems were physical in origin, they were caused by the accident. Although he recognised that depression and increased alcohol consumptions were factors in continuing the pursuer's difficulties, he preferred to leave the expression of opinion on those matters to psychiatrists. He recognised however that depression generally made the perception of back pain worse. Looking to the prognosis he expressed the view that if the accident had not occurred, the pursuer would not have suffered back pain as he did. Instead the natural progression of the pursuer's pre-existing condition (as disclosed on x-rays and in the pre-accident history) would have been for the condition of the pursuer's back to worsen slowly until such time as he gave up work in his mid to late forties.

[60]Mr Lloyd then went on to deal briefly with the evidence of Mr Cochrane who had seen the pursuer on two occasions, on 16 March 1998 and 1 March 1999. Mr Cochrane had expressed the view that the pursuer had suffered a soft tissue injury to the muscles of his lumbar spine, together with a minor traction lesion to the lumbar or sacral nerve. The soft tissue injury should have resolved within five to six months of the accident and the nerve traction symptoms might have persisted for twelve months in keeping the pursuer off work. Because of the referral for facet joint injections which were administered in March 1996, Mr Cochrane was prepared to accept that the pursuer might have been off work until April 1996 at the outside. Like Mr Court Brown, Mr Cochrane did not see the pre-accident records until March 1999. When he did see those records he stated that his earlier opinion was not altered. He concluded that the symptoms complained of by the pursuer were related to the natural progression of the pursuer's pre-existing back condition, by which he now felt he knew more. Thus Mr Cochrane was saying from March 1998 at least the pursuer had a genuine physical back problem, albeit it was unrelated to the accident. He specifically stated that the underlying degenerative condition of his spine had not been aggravated by the accident on 19 January 1995. In exploring the matter in evidence Mr Cochrane drew a clear distinction between mechanical problems and muscular or neurological symptoms.

[61]Mr Lloyd then went on to compare the two sets of orthopaedic evidence and to give certain reasons why the court should prefer the evidence of Mr Court Brown. He suggested that Mr Court Brown gave his evidence on commission in a clear and straightforward manner. The opinion he expressed was cogent and consistent throughout. Mr Cochrane on the other hand gave evidence which at times seemed frankly evasive. It was hard to avoid the impression that he had come to bat for the defenders. Mr Court Brown did not specify the location of the degenerative changes which he considered were present and upon which he founded in explaining the pursuer's complaints. Some considerable time was taken in cross-examination of Mr Court Brown with the suggestion that there was no objective evidence for the existence of degeneration in the facet joints. Ultimately Mr Court Brown explained his position to the effect that reference to degenerative changes were always to the discs and related facet joints. He expressed the view that it might be difficult to see degenerative changes in the facet joints on plain x-rays. He conceded that he had not seen the CT scan. The suggestion which was put to him was that there was no good objective evidence for the existence of these changes. In examination-in-chief Mr Cochrane was taken through the records and seemed remarkably coy about admitting matters which it subsequently emerged he knew, namely that certain x-rays and the CT scan did show posterior facet joint degeneration. In that light the evidence given by Mr Cochrane appeared evasive. It was as though he did not wish to concede what he knew to be the case. The competing diagnoses were muscular v mechanical. Mr Cochane made something of the presence of tingling in the accident and emergency notes at St John's Hospital which led him to a diagnosis of nerve traction injury. It was not clear however that any tingling played any real part in the pursuer's subsequent complaints. The result of the tingling seemed to have been referred to Mr Statham who excluded a disc problem. The whole focus of the pursuer's complaints and the complaints recorded in the notes was pain in the back, in the buttock and in the leg. If, as Mr Cochrane had it, the initial injury had been muscular, it was likely that the initial physiotherapy at St John's/Linlithgow where the pursuer attended on 10 separate occasions would have produced benefits. It did not. Mr Cochrane himself expressed surprise at this. In contrast, if the pursuer's complaints in the early post-accident period were mechanical, brought about by exacerbation of degenerative changes, the physiotherapy would not be expected to improve the symptoms. In addition it would be expected that some benefit would be gained from facet joint injections if those were the site of the problem. If benefit was obtained, this would indicate that the problem was there rather than being muscular. This is exactly what occurred. The fact that the second set of facet joint injections in August 1997 produced no benefit might well be explained by the pursuer's relatively advanced condition of depression then. All in all Mr Lloyd suggested that Mr Court Brown's opinion was much more than consistent with the history as spoken to by the pursuer and from the notes. Mr Cochrane simply asserted that barring the tingling the pursuer's pre-accident complaints were soft tissue in origin. In cross-examination he conceded not only that there was posterior facet joint degeneration but that the pursuer was suffering from symptoms in this condition by at least July 1995. In the notes (No 10/4 of process) Mr Statham wrote to the GP, Dr Shepherd, on 24 July 1995 referring to the history (which must refer to the post-accident history) indicating that there was "much to suggest facet joint degeneration". Mr Cochrane only seemed willing to concede that such symptoms could only have arisen in July. The reason for that view was to make room for his diagnosis of muscle strain in the preceding six months. The idea that the notes do not refer to the previous record and that was not to be accepted. Mr Statham, Dr Jenkinson and Miss McBurnie all considered that the pursuer's problems were likely to be mechanical. Mr Lloyd further suggested that the lack of cogency in Mr Cochrane's views, and his willingness to read into the notes what he wished to take out of them, was amply illustrated in his treatment of the pursuer's pre-accident symptoms. He stated that changes as shown on x-ray had a 95% correlation with subsequent problems. In the pursuer's case the changes were only minor. He therefore agreed with Mr Court Brown that in the absence of a prior history of symptoms, it would be many years before the pursuer would have been troubled by back pain. It was when he was asked to interpret the history of prior symptoms that he displayed evasion and according to Mr Lloyd a "partisan" attitude. In relation to the entry in the GP records for 2 July 1991 Mr Lloyd had asked Mr Cochrane about its significance in terms of prediction of future problems. Ironically, said Mr Lloyd, the entry related to a muscle strain. Mr Lloyd suggested that he had had to ask Mr Cochrane on 14 separate occasions before he conceded that it was probably not relevant to any future onset of degenerative pain. Mr Cochrane had expressed the view that the natural progression of the pursuer's pre-existing condition would have caused him to give up work within about two or three years from the date of the accident. First of all, according to Mr Lloyd, that seemed a very draconian view to take of a pre-accident history which involved only two weeks off work, particularly in relation to the pursuer whom everyone considered was well motivated towards work. His view of two or three years must be contrasted with that of Mr Court Brown, who thought the pursuer was likely to continue work until his mid to late forties. The view expressed by Mr Cochrane as to the natural progression of the pursuer's pre-accident condition was according to Mr Lloyd inconsistent with the view he expressed that the pursuer was something of "a malingerer". Mr Cochrane did not see the pursuer until March 1998. If he were correct as to the progression of the underlying condition the pursuer would have been by March 1998 in a condition where he was physically unfit for work as a fire-fighter at least. Despite this Mr Cochrane chose to characterise the pursuer as a malingerer. Mr Lloyd suggested that such a description flew in the face of all the other medical evidence, the evidence of Rhona Paterson, and the evidence of the other Linlithgow Fire-fighters. Mr Lloyd submitted that Mr Court Brown's evidence should be preferred since his explanation was simpler and explained more. It did not involve the Court in accepting the quite incredible coincidence of the pursuer's degenerative condition coming into play just at the end of Mr Cochrane's six months soft tissue period, while at the same time the pursuer malingered as to the extent of the symptoms to stay off work from a job which he and everyone else said he loved.

[62]Mr Lloyd then dealt with the psychiatric evidence which had been led from Dr A R Stewart, consultant psychiatrist for the pursuer and Mr E R Tierney, clinical psychologist for the defenders. Each of them had seen the pursuer twice. In giving their evidence, suggested Mr Lloyd, it became apparent that they were in almost complete agreement as to the pursuer's mental condition. Dr Stewart considered that the pursuer was suffering from a moderately severe depression, a description which was equivalent to a major depressive disorder on the American Psychiatric Association DMSIV classification. Mr Tierney described the pursuer's condition as a major depressive illness. Each described the pursuer as suffering depression, impaired concentration, social isolation and the increased perception and focus upon his back pain. To the extent that the pursuer was depressed, this caused his symptoms of back pain to be subjectively worse. He had also suffered a loss of libido. Both experts agreed that the factor which had precipitated the spiral of increased drinking and increased depression was the injury to the pursuer's back and his subsequent absence from work. The reason for this was the importance of the pursuer's job to his self perception. Mr Tierney described in terms of the pursuer using his work and his sport as "coping mechanisms". He gave evidence that the pursuer had a history of prior low mood related to the death of his parents but this tendency to low mood increased post accident because the pursuer had lost his ability to work and participate in sport. There was no evidence however that any such prior episodes of low mood amounted to any clinical condition. Both experts were in agreement as to the cause of the pursuer's depression and increased drinking. Dr Stewart put the onset of his depression as far back as May 1995 referring to a letter from his general practitioner. Such a view was supported by the evidence of Rhona Paterson who spoke of the pursuer being depressed within a period of three to four months after his accident and drinking much more heavily then. The timing of the onset of the pursuer's depression was of course significant in relation to the orthopaedic evidence of Mr Cochrane. Even if Mr Cochrane's view as to the six months muscle strain were accepted, it would follow on this view of the psychiatric evidence that the muscle strain had caused the depression/drinking. Both experts were questioned on the pursuer's failure to take his medication and follow the advice given by his doctors in relation to cutting down on his drinking. The pursuer could offer no explanation for at least some of his failure. He suggested in relation to the prescription of amytrypteline that he suffered headaches. Certainly Dr Stewart did not seem to recognise headaches as being a usual side effect of that drug or indeed others. It was true however that Dr Stewart recognised that the drugs would have unpleasant side effects including increasing weight, a problem of which the pursuer complained. Both Dr Stewart and Mr Tierney accepted that the pursuer could have been a bit more diligent in taking his drugs but that had to be seen in context. Any failing on the pursuer's part was simply one factor amongst many. Mr Tierney was more optimistic as to the likely effects of the drugs and the pursuer's depression. Dr Stewart thought that the pursuer's back pain was the most important factor together with the loss of his job. He thought that the pursuer's aggression was likely to continue for so long as the back pain continued. Mr Court Brown thought that the pursuer's back pain was likely to continue until he reached his mid to late forties when he would have been suffering back pain anyway. Mr Tierney described the pursuer as a stoic. That attitude was made manifest in the pursuer's comments about psychiatric treatment. Mr Tierney could hardly believe that the pursuer was in work when he saw him in January 1999. He thought that the pursuer was far too ill to be working. He thought that the pursuer was to be commended for being able to return to work on the face of considerable difficulties. This view was in stark contrast to the view expressed by Mr Cochrane that the pursuer was a malingerer.

[63]Mr Lloyd then went on to make more detailed submissions about the way in which the Court ought to approach the question of damages. He suggested that the psychiatric evidence was very largely uncontroversial. The pursuer was suffering from a major depressive condition which began within a period of three to four months from the accident. Both Dr Stewart and Mr Tierney considered that but for the accident the pursuer would not have become depressed. Properly construed however the depression/increased drinking related to the pursuer's absence from work was caused by his back complaint. It might be thought therefore that there was an issue in relation to the depression if Mr Cochrane's orthopaedic evidence was preferred to that of Mr Court Brown. However, Mr Lloyd suggested that was not the case. The condition of depression should sound in damages even if Mr Cochrane's evidence was to be preferred as to the six months muscular strain. The reason for this claimed Mr Lloyd was the timing of the onset of the depression.

[64]Mr Lloyd then dealt with the situation if the evidence of Mr Court Brown was to be preferred. In that event the pursuer would have suffered back pain from an exacerbation of degenerative changes "mechanical low back pain" for a period of nearly five years, ten months to the date of the proof. That condition of back pain was accompanied by (and worsened by) a major depression and the negative impact of increased alcohol consumption. The mental and physical conditions were inextricably linked with one "potentiating" the other. If Mr Court Brown was right, the pursuer would continue to suffer accident related back pain until his mid to late forties. The pursuer was 32 at the date of the accident and was nearly 38 at the date of the proof. The evidence indicated that he would probably not have gone off work until "say aged 47". That would give a future period of about nine years of back pain and depression. Mr Lloyd accepted however that the pursuer was back in work and therefore to some extent his depression may have some prospect of improvement. Against that however, his condition had worsened at Dr Tierney's second examination and also at Dr Stewart's second examination.

[65]As regards solatium Mr Lloyd suggested that a figure of about £21,500 would be appropriate (Buck v Royal Infirmary of Edinburgh 1999 SLT 538). Mr Lloyd also suggested that any award of solatium should be exclusive for anything for loss of congenial employment. In relation to such a claim he accepted that no award for loss of congenial employment as a separate head of damage had yet been made in Scotland. Claims had been rejected in favour of the traditional approach in McLean v Lothian and Borders Fire Board 1999 SLT 704 and Stark v Lothian and Borders Fire Board 1993 SLT 653. However, in Lenaghan v Ayrshire & Arran Health Board 1994 SLT 765 the Inner House accepted that there may be circumstances "in an exceptional case such as whether the pursuer's loss of congenial employment is a major factor in the case" where a separate award might be appropriate. Mr Lloyd submitted that the case was such as case having regard to the evidence of the pursuer, his fellow fire-fighters, Rhona Paterson, Dr Stewart and especially Mr Tierney. The present case was not simply one where the pursuer had lost a job he liked but a case where his sole perception was bound up in his job and had been damaged by the loss of it. If an award could not be made in this case, suggested Mr Lloyd, as a separate head, it was difficult to see what content could be given to the case of Lenaghan. He suggested a figure of £10,000 in respect of this claim. In relation to wage loss, the pursuer had been off work from 19 January 1995 until about 21 August 1996. He then returned to work for about two months during which time he suffered a recurrence of his previous back pain. His gross wage loss to the date of the submissions made by Mr Lloyd was in round terms £50,600. That figure was arrived at by adding a further year's earnings of £9,150 to the total figure of £41,420 as set out in paragraph 5/vi of the Joint Minute. From the above figure the sum of £29,400 would at best for the defenders fall to be deducted. That figure was arrived at by adding £7,200 to £22,170 from paragraph 6/iv of the Joint Minute and rounding. If that approach were correct the wage loss figure was £19,250. He suggested that interest should be awarded on that figure at the rate of 4%. Mr Lloyd also suggested that the payment received by the pursuer from the defenders were not to be deducted in terms of section 10 of the Administration of Justice Act 1982. These payments represented a contractual benefit to the pursuer falling within the provisions of section 10(a) of the 1982 Act. Mr Lloyd referred to the case of Lewicki v Brown & Root Wimpey Highland Fabricators 1996 SLT 1283. The payments made to the pursuer required him to apply to the defenders. Payment was made in respect not only of his fire brigade earnings but also his earnings from his principal employment as a baker. It was difficult to see therefore how these payments could be terms "earnings or remuneration of employment" so as to fall within section 10(1). The proper construction of these payments is that they represent a contractual benefit to the pursuer who in turning out for fire brigade duty put himself at risk of injury, including the risk of loss of earnings from his principal employment. If the payments were not to be deducted the figure for net wage loss would be £32, 250 (£19,250 plus £13,000 from paragraph 6 of the Joint Minute). He also suggested interest on that figure at the rate of 4%.

[66]As to future wage loss, the multiplicand in terms of the Joint Minutes, paragraph 5/vi was £9,150 minus £7,200 which equalled £1,950. The multiplier is five. Even if Mr Cochrane was to be preferred, it would follow if the depression commenced within three or four months of the accident that it was brought about by the effects of the soft tissue strain. Accordingly the depression was still sound in damages. It would appear to follow from Mr Cochrane's view that the pursuer's pre-existing degenerative condition would of itself progress within two to three years to the point where the pursuer was off work anyway. If that was so then one would expect that he would have become depressed anyway as well. On that footing the effect of the accident would have been to cause a six months muscle strain, a nerve traction injury for about a year, together with depression of a fairly serious nature for about three years. Mr Lloyd suggested that in these circumstances an appropriate award of solatium would be £5,500 (McCarvel v Strathclyde Fire Board 1997 SLT 1015 and Somerville v Lothian Health Board 1994 SLT 1207). On Mr Cochrane's approach there would have been three years loss of wages. From the Joint Minute this would have been £25,310 minus £14,970 which made the sum of £10,340. All of this would be attributable to the past. Interest would accrue at 4% for three years and then at 8% thereafter. On the view taken of section 10 of the 1982 Act a further £13,000 would be added to the net wage loss figure. Interest at 4% would be applicable to that also for a period of three years and thereafter at 8%. An award under the heading of "Loss of Congenial Employment" would still be appropriate said Mr Lloyd although any such award would be much less, say £3,000. The pursuer conceded that on the whole evidence an award under the head of "Services" would be inappropriate.

[67]Mr Lloyd then turned to the question of loss of employability and suggested that although the pursuer made a claim for a loss of earnings on a multiplier/multiplicand basis, on the footing that Mr Court Brown's evidence should be preferred, he would in addition be entitled to an award under the head of "Loss of Employability" having regard to his ongoing symptoms and the risks of losing his current job. (Hughes v B R B 1992 SLT 97). Taking into account the pursuer's ongoing depression and the lack of security in his job, the award should be reasonably large given that the future period was nine years. He suggested a figure of £10,000 which would be equivalent to about one and a half year's loss of earnings from his present job.

(b) Defenders

[68]Mr Weir for the defenders began also by giving a synopsis of the relevant orthopaedic evidence. He began with the evidence of Mr Court Brown whose initial opinion in June 1996 had been that the accident caused a flare up of otherwise dormant minor degenerative changes in the pursuer's lumbar spine, mainly involving the facet joints. That remained Mr Court Brown's opinion in his second report. He believed that the pursuer's pain was coming from a degenerate segment in the lumbar spine. Mr Court Brown's opinion was on the second occasion in February 1998 reinforced by what he claimed to have found in the GP records, namely that the pursuer did not have significant back pain prior to the accident. In fact, the occasion of Mr Court Brown's final report in March 1999 was the first opportunity in which he had to examine the pursuer's pre-accident records. Mr Court Brown's opinion was that the 1995 accident had merely provided an exacerbation of pre-existing degenerative spinal disease which might have been expected to settle after at most three to six months. The pursuer was nevertheless suffering from chronic back pain which was related both to depression and alcohol abuse.

[69]Mr Weir then dealt with the evidence given on behalf of the defenders by Mr Cochrane. He had prepared two medical reports Nos 22/1 and 35/1 of process. Mr Cochrane's initial opinion in March 1998 was that the pursuer had sustained as a result of the accident a soft tissue injury to his lumbar spine musculature with possible minor traction lesion to the lumbar or sacral nerve. Any soft tissue muscle injury would have resolved within five or six months of the accident. Any nerve traction symptoms perhaps persisting for about twelve months altogether. Mr Cochrane noted the existence of a road traffic accident in the pursuer's history which caused further soft tissue injury to the pursuer's lower back in which in evidence Mr Cochrane said may have been the cause of the pursuer's symptoms of back pain in August 1996 when he was diagnosed as suffering from depression. Mr Cochrane also formed the impression that the pursuer's back symptoms in 1996 were being potentiated by his social circumstances and excess alcohol intake. Mr Cochrane's second opinion in March 1999 included a review of the pre-accident GP notes. Thus against a background of previous episodes of back problems, Mr Cochrane's opinion remained unchanged. The pursuer's present back symptoms reflected a natural progression of his pre-existing back condition which was not aggravated as a result of the accident in January 1995.

[70]The surgeons' opinions were developed in the course of evidence. Mr Court Brown's opinion having seen the GP notes was that the pursuer would have been unlikely to continue working beyond his mid to late forties. Indeed the thrust of this evidence was that he might have given up firefighting even earlier. In cross-examination Mr Court Brown's opinion was qualified by evidence about the impact of the road traffic accident in which the pursuer was involved in March 1996. Mr Court Brown accepted as perfectly reasonable the suggestion that it was likely that the road traffic accident caused a recurrence of exacerbation of existing pain.

[71]Mr Cochrane expressed the opinion in evidence that had the accident not occurred the pursuer would in any event have been unable to continue as a fireman beyond the period of approximately two to three years after the accident. Mr Cochrane made a similar comment in the covering letter to his second medical report in March 1999. He also expressed the opinion the pursuer ought to have been able to return to work by about April 1996 and that his back symptoms were then to a large extent psychosomatic as indicated in his first report. At the proof Mr Cochrane readily accepted that the pursuer did have underlying degenerative pain but that this was not the result of the accident in January 1995.

[72]Mr Weir then went on to give a number of reasons why the Court should prefer the evidence of Mr Cochrane. In the first place he suggested that Mr Cochrane's opinion was generally more consistent with the objective medical evidence namely:

(1)The examination findings after the accident of local tenderness on the left side of the lower back and tingling in the buttock as noted in St John's Hospital admission record (No 10/2 of process) were not consistent with degenerative changes in the facet joints. Tingling was a function of nerve injury.

(2)The report of the community physiotherapist in the GP records (No 10/4 of process) dated 2 May 1995 indicated a muscular injury.

(3)The pursuer's evidence was that he suffered fairly constant back pain for the first seven or eight months after the accident. The pain then started to fluctuate.

(4)CT Myelography in July 1995 showed only minor disc bulges at L4/5 and L5/S1 level. The mechanism of the injury was not compatible with causing significant damage at that level which was the subsequent site of phenol ablation.

(5)The pursuer gave evidence to the effect that both sets of facet joint injections did not work for him. The medical evidence was that the first injections in March 1996 may have been in part effective. The second injection was ineffective. Mr Cochrane therefore concluded that the facet joints were not the site of ongoing pain.

(6)Mr Cochrane's findings in chronology were consistent with the relatively optimistic first report of Mr Court Brown in 1996.

[73]Mr Weir submitted that Mr Cochrane's reports on the pursuer were more comprehensive and detailed than those of Mr Court Brown. He had reviewed in detail the medical records, x-rays and reports. He had given and demonstrated greater attention to detail. He was able to detect minor degeneration of the facet joints in the 1997 x-rays. Mr Court Brown had not mentioned in his later reports having seen such changes. Having regard to the terms of the cross-examination in his evidence it was inherently improbably that Mr Court Brown saw but did not record these changes on x-ray.

[74]Further Mr Court Brown's evidence was generally much less reliable than that of Mr Cochrane and his approach more superficial. His first opinion referred to a flare up of otherwise quiescent minor degenerative changes in the pursuer's lumbar spine, these mainly involving the facet joints. Mr Court Brown was wrong about diagnosing the existence of quiescent changes. Such changes as were shown up in the CT scan No 11/1 of process were not quiescent. Mr Court Brown assumed that they were.

[75]At the time of his first report and despite its terms, Mr Court Brown had not himself seen any x-ray evidence of facet joint degeneration. Instead he appeared to rely on the fact that because others had treated the facet joints therein lay the problem.

[76]In his second report, Mr Court Brown thought that "it was important to point out that Mr Davidson did not have significant back pain prior to the injury and that this is confirmed by the general practitioner records". Mr Court Brown accepted that this was an important part of his diagnosis which he made without having seen the pre-accident GP records at all. His evidence came across as evasive and unimpressive.

[77]Mr Court Brown's third report observed that the pursuer "had not been correct in telling me that he did not have back pain prior to the 1995 injury". This showed his previous two reports to have been based on erroneous assumptions.

[78]Mr Court Brown did not record in his reports the existence and possible effect of the road traffic accident in March 1996 referred to above and discussed in cross-examination.

[79]There was again no evidence from the third report that Mr Court Brown had actually looked for or seen any facet joint degeneration on x-ray. In all these circumstances Mr Weir submitted that Mr Cochrane's evidence should be preferred over that of Mr Court Brown.

[80]Mr Weir then went on to deal with the psychiatric considerations. He suggested that the only substantial dispute between Dr Stewart and Mr Tierney lay in the origins of the pursuer's depression. Through his reports Dr Stewart concluded that the accident had been the trigger for the pursuer's depression. Mr Tierney's conclusion was that the various factors which produced the pursuer's depression were of long standing and that he had suffered from episodic low mood for many years. In this respect the pursuer accepted that he had suffered from low moods as a result of his father's premature death. The pursuer had also been shown to have a significant pre-accident drinking habit. Dr Stewart described that alcohol tended to be a depressant. The pursuer was first diagnosed as suffering from depression in August 1996. He was prescribed amytriptylene which he did not take or take consistently causing Dr Backett to comment on 8 January 1997 that "It is perhaps not perhaps surprising that his mood remains unchanged". Both sets of reports recorded the history of failure on the part of the pursuer to take his prescribed antidepressant medication. Mr Weir suggested that that last point was of particular significance. All the medical witnesses agreed that the pursuer's depression had resulted in a greater perception of his back problems and that the two problems were inter-related. Both Dr Stewart and Mr Tierney agreed that the pursuer's failure to take medication was a conscious one. Dr Stewart's evidence was to the effect that the pursuer knew that he was ill and knew that he should take medication. Mr Tierney was told by the pursuer that he didn't take his drugs because he felt he didn't need them. Both doctors considered that the pursuer's psychiatric problems would have been improved by taking prescribed drugs and that this would have been beneficial to the pursuer's physical condition. There was further evidence that the pursuer failed to take advantage of treatments which were thought to be beneficial to him, notably his failure to pursue attendance at the Employment Issues Course. Insofar as the pursuer's depression might have been related to his alleged financial problems, the pursuer accepted in cross-examination that he had run up debts which pre-dated the accident which he was requiring to meet thereafter. The onset of symptoms of depression relative to the diagnosis in August 1996 also coincided with the incidence of the road traffic accident in March 1996. Not only was there evidence that this had orthopaedic consequences, it also resulted in evidence of anxiety symptoms which are referred to in Mr Tierney's evidence. It was accepted on all sides that the pursuer's alcohol consumption had exacerbated the pursuer's symptoms of depression.

[81]Having regard to the whole medical evidence Mr Weir suggested that the pursuer's depression was not necessarily connected to the accident in January 1995. If Mr Cochrane's evidence was accepted (symptoms of back pain would have cleared up after perhaps one year with the pursuer remaining absent from work until about April 1996) there was nevertheless a consistency that in the onset of depressive symptoms and alcohol abuse in the months leading up to August 1996 and the continuance of pain from a pre-existing degenerate back condition (the existence of which Mr Cochrane accepted) and/or the physical or mental consequences of the road traffic accident in March 1996. In the final analysis Dr Stewart's conclusion that the pursuer's depression resulted only from the 1995 accident was based upon the assumption that all of the pursuer's back problems since then stemmed from that injury. Mr Weir suggested that the medical evidence did not support this. The pursuer may be depressed. That was caused by the 1995 accident. The pursuer had not shown that his depression was linked to the accident. Mr Tierney should be preferred. The pursuer's psychiatric conditions should not be reflected in any social solatium award.

[82]Mr Weir then turned to the question of assessment of damages. In making his submissions he presumed that the evidence disclosed a soft tissue injury with some nerve traction lesion as indicated by Mr Cochrane. This included no incidence of psychiatric injury, depression being diagnosed in August 1996 and not caused by the accident. Furthermore, the pursuer would have returned to work by the end of April 1996. On that basis he suggested that an award of solatium was appropriate at £5,500 (McCarvel v Strathclyde Fire Board 1997 SCLR 573, McTigue v East & Midlothian NHS Trust 1998 SLT 979). He suggested interest on that figure all attributable to the past from 19 January 1995 to date at the rate of 4%. As far as past wage loss was concerned, from 19 January 1995 to 30 April 1996 the pursuer earned, according to the Joint Minute the sum of £9,660. He should have earned £11,390. His loss was therefore £1,730. Again interest on that figure should be at 4% from 19 January 1995. Mr Weir also suggested on the basis of the submissions which he made earlier, that some 20% of any total figure should be deducted in respect of the pursuer's contributory negligence. If the Court were to accept (1) Mr Court Brown's evidence that the pursuer exacerbated his degenerate back condition as a result of the accident, and (2) Dr Stewart's evidence that the pursuer's depression was also brought on by the accident. Mr Weir suggested that the following matters would be relevant. Mr Court Brown recognised that the pursuer's degenerative back may have forced the pursuer to withdraw from the Fire Brigade before his mid-forties. Mr Cochrane was of the view that the pursuer would have had to do so within two to three years of the accident. The pursuer had failed to minimise his loss by not taking his prescribed medication and his damages should be reduced accordingly. Had he taken his medication the pursuer could have obtained alternative work much earlier than he did. The payments made to the pursuer under section 4 of the Fire Service Gray Book did fall to be taken into account in assessing past wage loss (Lewicki v Brown & Root Wimpey Highland Fabricators 1996 SC 200; Smooker v London Fire Authority 1991 2 AC 502). Mr Weir also submitted that it would be inappropriate to make a separate award under the heading of "Loss of Congenial Employment". The appropriate way to deal with this head of loss would be to consider it under a general award for solatium. The evidence showed that the pursuer's ability to remain in the Fire Brigade part time could have been compromised prematurely; no doubt this would have caused disappointment to the pursuer (Lenaghan v Ayrshire & Arran Health Board 1994 SC 365 at 370; Hay v Secretary of State for Scotland 1998 SLT 436 at 438). Any award included within solatium should be modest in Mr Weir's submission. Finally Mr Weir suggested that the pursuer's psychiatric condition had shown evident improvement now that he was in work.

The Objection

[83]I have no hesitation in deciding that the objection is well-founded at least to the extent that there is no case on record which attributes any fault to the actions of Fire-fighter Scott. Therefore the question comes to be whether the inexperience of Scott was relevant to the decision of the officer in charge of the drill, Skorupa, to hold the exercise in the manner in which he did. Having heard the evidence, one thing at least is clear, namely that the undisputed cause of the problem that occurred, namely the gust of wind from left to right as the pursuer viewed the tower necessarily put stress on Scott as the right-hand pole-man. Was then that a factor, as Mr Lloyd contended which should have been taken into account? In my opinion not only was there no averment that Fire-fighter Scott did anything wrong, there was no evidence to that effect either. In any event it was clear from the evidence that any potential disaster was averted by the sensible precautions taken by Skorupa to reinforce Scott's position by the stationing of extra men to come to his aid should the necessity arise. In these circumstances I take the view that the inexperience of Scott is irrelevant on the pursuer's pleadings in consideration of any decision that Skorupa took in relation to the conduct of the drill. I therefore sustain the objection. It follows from that I must consider the common law and statutory cases against Mr Skorupa as if a fully trained crew were instructed to do the L3 drill in the weather which prevailed.

The Merits

[84]In giving my decisions in this case I see no necessity to go into the evidence upon which they are based. I have narrated the evidence in more detail than I intended and have rehearsed very fully the submissions made to me by counsel. For those reasons I am able to brief. In saying that, it should be understood that deciding this case has not been easy.

Common law case

[85]The principal question which falls to be decided in this regard is the state of the wind at the time when Skorupa decided that it was safe to hold the normal L3 drill. I say that because the pursuer's case is now solely predicated on the failure of Skorupa to extend the ladder to shorter than the desiderated extent. The evidence for that proposition comes almost exclusively from Mr Wyness - an undisputably experienced fire officer. I have two criticisms of his evidence. Firstly, a lot of what he said was based on the inexperience of Scott being an important factor. I have already discounted that. Secondly, I must say that I found his evidence partial. I gained a clear impression that he had been asked to provide support for the proposition in relation to an initial two-storey extension for which Mr Lloyd contended and had provided a justification for that proposition. His evidence flew directly in the face of all the other officers involved in the training of recruits as to the practice that was regularly adopted and indeed the training manual. Furthermore, none of the experienced fire-fighters present at Linlithgow or participating in the drill objected to either the prevailing weather circumstances or the constitution of the team holding the L3 drill. As to the wind I was prepared to accept the evidence of Mr Skorupa that by the time the drill was undertaken the wind made it reasonably safe to do so. In those circumstances there was in my opinion no duty upon Mr Skorupa to commence the drill by extending the ladder only to the second floor and not to the third as was accepted by Mr Lloyd to be the sole basis of the pursuer's common law case. In my opinion therefore, that case therefore fails.

The statutory case

[86]This case is based on the Manual Handling Operations Regulations. Regulation 4(1) thereof provides:

"Each employer shall -

• where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve the risk of their being injured -

• make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them having regard to the factors which are specified in column 1 of schedule 1 to these regulations and considering the questions which are specified in the corresponding entry in column 2 of that schedule.
• take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable...".

In order to establish such a case, the pursuer has to prove that the defenders failed to make a suitable and sufficient assessment of the task to be undertaken, namely, the L3 drill. Further the pursuer has to prove that the defenders failed to take appropriate steps to reduce the risk of injury to the fire-fighters to the lowest level reasonably practicable. In my opinion that case fails also. Mr Skorupa in my view did carry out the required assessment of risk. He was aware of the changing weather conditions all that day. He had it in mind not to conduct the L3 drill even up to his arrival at Linlithgow. He did assess the conditions before starting the drill. Furthermore he did take all precautions to minimise any risk of injury by stationing extra men in the "sensitive" positions. In the event that saved any catastrophic outcome. All the men whom he assigned the drill were experienced, apart from Scott, and it is clear that the support he offered Scott was more than adequate. He could not have anticipated that the pursuer would have acted in the way in which he did. In my opinion therefore the case under the Regulation also fails.

Contributory negligence

[87]I agree entirely with Mr Weir's submission on this point. It was perfectly clear that the pursuer was well-trained and well acquainted with the standard procedure in what he as jackman ought to do if control of the head of the ladder was lost, namely, lean his weight into the ladder and force the head into the tower. He failed to do that. Instead he took the unprecedented step of jumping onto the jackbar, with the effect that he injured his back. On his own admission this is not what his training told him to do. It was an impulse that from all his training he should not have given in to. On the acceptance that he acted spontaneously rather than in a calculated manner I should have restricted any damages by 25%.

DAMAGES

The back injury

[88]Had I found in favour of the pursuer in this case I would have accepted the evidence of Mr Court Brown, even although I was not there to hear it. I found that his explanation of the pursuer's continuing back trouble was acceptable. Nor was his diagnosis or prognosis weakened by the fact that the pursuer had not been honest about his pre-accident history. Further, his opinion was fully consistent with the overwhelming evidence that only a really serious and long-lasting problem would have caused the pursuer to abandon not just his beloved job but his whole way of life as a part-time fire-fighter. I rejected the evidence of Mr Cochrane. As Mr Lloyd suggested in his submissions, he had great difficulty in supporting his thesis on determined cross-examination. His opinion was clearly influenced by the fact that the pursuer had concealed any pre-accident back problems from his doctors. That amongst other features such as the x-ray evidence and the tingling in the legs led him to the view that the pursuer was a "malingerer". The evidence of the pursuer's girlfriend and his colleagues made that opinion quite untenable.

[89]Nevertheless I am of the view that the pursuer failed properly to mitigate his loss. He failed to disclose his relevant medical history to those trying to help him. He failed to attend at appointments for treatment made in his own interests. He failed to accept advice as to the treatment prescribed for him. I have decided to take these matters into account in assessing the quantum of any damages that I would have awarded.

Psychological evidence

[90]I really did not find much dispute at the end of the day in the evidence relating to the psychological effect of this incident on the pursuer. It was clear, as I have said, that the loss of his ability to continue in his very enjoyable and challenging occupation as a fire-fighter weighed heavily on the pursuer. It was clear to me that it got him down. It was clear to me that both that and his lack of former mobility got him down and caused depression and indeed his excessive drinking. Again he did fail to minimise the situation by taking his prescribed medication and I would have taken that into account also in assessing any damages.

QUANTUM OF DAMAGES

[91]In relation to the amount of damages that I would have awarded on full liability, I start by saying that I find that the pursuer seriously failed to mitigate his loss, basically by declining or neglecting to do what his advisers told him to do. That I have detailed already. Subject to that and to the question of contributory negligence, I would substantially have accepted Mr Lloyd's submissions in relation to quantum. Having accepted Mr Court Brown's opinion and having taken the view that the psychiatric evidence favoured the pursuer in relation to his depression and other symptoms, I would have made an award of solatium on full liability in the sum of £20,000. Although I had doubts as to the pursuer's credibility in relation to the way he spoke of previous back problems and his response to suggested treatment, I did consider that he had suffered badly. In that figure I have included a sum in respect of "loss of congenial employment" as Mr Lloyd put it. I did think that the pursuer would have deserved something for losing a career he so much enjoyed but I felt that that loss was so much bound up with his other sufferings that a separate award would be inappropriate.

[92]As to wage loss, I would have accepted Mr Lloyd's figure of £32,250 (£19,250 plus £1,300) with interest at the rate of 4% from the date of the accident. Similarly I would have agreed with Mr Lloyd as to an award in respect of future loss at £9750. As to loss of employability, again I would have agreed Mr Lloyd's figure of £10,000.

[93]In the whole matter therefore, I sustain the third and fourth pleas-in-law for the defenders and assoilzie them from the conclusions of the summons.