JOHN LOGAN v. STRATHCLYDE FIRE BOARD
| | OPINION OF LORD EASSIE in the cause JOHN LOGAN Pursuer; against STRATHCLYDE FIRE BOARD Defender: ________________ |
12 January 1999
Introductory
At about 5 o'clock in the afternoon of 26 December 1993 a road traffic accident occurred in Canniesburn Road, Glasgow. It involved a collision between two motor vehicles, one of which was a car whose driver was injured and trapped in the wreckage of his car. In order to free the driver the fire service was called upon to assist. The pursuer in this action was at that time a firefighter on duty with the Strathclyde Region Fire Service, whose statutory successors are the current defenders in this action. The pursuer was based at Easterhouse Fire Station. Along with other colleagues he went to assist in the task of freeing the trapped driver from the wreckage of his car. The pursuer claims that in the course of that operation, when he was engaged in moving an item of equipment to which I shall refer as "the power pack" he suffered an injury to his ankle. He seeks reparation from his employer's statutory successors in respect of the consequences of that injury to his ankle.
The HRV and equipment
In December 1993 Easterhouse Fire Station was the base for a special vehicle containing heavy rescue equipment designed for such purposes as the freeing of the injured occupants of motor vehicles damaged in road accidents. In the Fire Service terminology that vehicle was referred to as the "HRV". The HRV was essentially a heavy goods vehicle within the covered, goods carrying part of which were stored in racks and the like most of the equipment required by or useful to the Fire Service in rescuing the victims of accidents. The Easterhouse HRV was the only HRV operated by the Strathclyde Fire Service. At the rear of the HRV was a mechanically operated tailgate which could be positioned as an horizontal extension of the floor of the HRV onto which items of equipment taken from the interior of the vehicle might conveniently be placed. In that horizontal position the tailgate could then be lowered in a generally horizontal attitude to the ground. Fins of varying depth attached to the underside of the tailgate (if seen in its horizontal position) meant that on its reaching the ground in its general horizontal position there would inevitably be a small tilt or incline proceeding downwards from the rear of the vehicle itself. That degree of tilt could be increased by the operator of the controls of the tailgate. Those controls were operated from a hand-held control panel attached to a coil of cable leading to the vehicle. The operator of those controls could thus stand on the tailgate, or on the ground, or within the vehicle, while controlling its movements.
In order to facilitate the transport of items of rescue equipment from the interior of the HRV to the actual scene of an accident the HRV was equipped with two trolleys of such a size that a trolley could be placed on the tailgate and loaded with equipment when the tailgate was at the same horizontal level as the floor of the vehicle. The laden trolley could then be lowered, on the tailgate, to ground level and thereafter pulled or pushed to the actual scene of the accident at which the rescue equipment was needed.
Among the many items of equipment on the HRV which attended at the road traffic accident in Canniesburn Road on 23 December 1993 were at least two of what are referred to in the pleadings as "Lucas generator or power pack". As previously indicated I shall refer to this item, as then carried on the HRV based at Easterhouse Fire Station, as the "power pack". It was made up of two principal components, namely (1) a petrol engine driving a pump providing hydraulic pressure to operate various items of rescue equipment such as hydraulically operated rams or spreaders (used, for example, to force apart wrecked car doors) and (2) a hose reel containing two sets of hoses each set consisting of a flow and return hose, the four hoses being connected by couplings to equivalent outlets or inlets on the pump. As is apparent from the manufacturer's documentation (Nos.25/2 and 25/3 of process) the first component was surrounded by and attached to the interior of a metal tube frame in the outline shape of a cuboid. The second component (the hose reel) was bolted to the outside of one of the vertical surfaces of that cuboid. The combined weight of the two components of the power pack was some 83kgs (approximately 183lbs) whereof approximately 42kgs was attributable to the hose reel and its hoses.
The lead up to the pursuer's accident
It appears that, not unexpectedly, the road accident in Canniesburn Road caused considerable traffic congestion. Accordingly the HRV required to stop some distance away from the actual locus of the road accident. Estimates of the distance between the HRV and the locus of the road accident given by the witnesses naturally varied. They ranged between 100 and 200 yards but the precise distance within that range is not material. On the arrival of the HRV two trolleys were loaded with equipment such as hydraulic rams and spreaders and a Lukas power pack and the trolleys were then pulled or pushed closer to the actual scene of the road traffic accident. For some reason immaterial to the present action the generator within the power pack failed to start and accordingly the spare power pack carried in the HRV was required as a matter of urgency. The pursuer and Paul Tidser, who was the driver of the HRV, were accordingly detailed to go back to the HRV to fetch the spare power pack. They duly hastened back to the HRV. They located the backup power pack and moved it tailwards along the aisle or passageway between the equipment racks in the HRV, the pursuer, at the tailward end, pulling the power pack whilst Tidser, at the forward end, was pushing it. Together they pushed or slid the power pack on to the tailgate, which was in a horizontal position level with the floor of the HRV. The tailgate was then lowered with the intention that the pursuer and Tidser would thereafter transport the power pack to the scene of the road accident.
The accounts of the pursuer's accident
(a) The pursuer's evidence may be summarised as follows. When the tailgate was lowered it had roughly the slight downward tilt to its rear illustrated in the photograph No 3 of the production No 20/2 of process. The pursuer was at the tailward end of the power pack (by reference to the direction in which the HRV was facing) and Tidser was in the approximate position of the blue shirted officer nearest to the HRV shown in that photograph. The intention would be to push the power pack along the tailgate towards the rear offside corner. Accordingly Tidser pushed the power pack down the slope of the tailgate. The pursuer was guiding it to the corner with one hand placed on the frame of the generator component of the power pack. He did not have to pull it. For whatever reason, the power pack came down too fast for him. It struck him on the left leg and in consequence the pursuer fell over to his right hand side. As he went over on his right he injured his right ankle. He felt pain and gave a yelp but given the urgent need to get the power pack to the scene of the road accident he and Tidser carried it there making much more frequent rests than the rests which they would in any event have had to make, even if the pursuer had not been injured, by reason of the weight and awkwardness of the power pack.
The road accident had occurred at more or less the end of the pursuer's shift and accordingly on returning to the station the pursuer finished up and went home. He had pain and swelling in his ankle during the night, which had not subsided by the morning. He therefore went to the Accident & Emergency Department of Monklands Hospital where his ankle was x-rayed and he was told that he had sprained a ligament. He also reported by 'phone to the Easterhouse Fire Station that he would not be in to work later that day because he had injured his ankle in the incident on the preceding evening. The pursuer deponed that to the best of his belief he would have said something about being hurt by the power pack but he did not give any detailed account of the episode to the Fire Station. In cross examination the pursuer stated, among other things, that at the time at which his leg was struck by the power pack his left foot was on the tailgate and his right foot on the ground adjacent to it. He was not pulling the power pack but simply guiding it and his only explanation for the power pack hitting him as it did was that Paul Tidser had used more pushing force than was necessary. When he was struck on his left leg, he fell over to his right and thereby went over on his right ankle.
(b) In his evidence Mr Paul Tidser described himself and the pursuer as pushing the power pack towards the rear and side of the tailgate (after the tailgate had been lowered to the ground) with, so far as Paul Tidser was concerned, the intention of lifting it up and carrying it off. Tidser was unsure whether the pursuer was simply guiding it or might also have been pulling it. However, for some reason the power pack veered round and struck the pursuer on his left ankle. It caused the pursuer to fall over to his (the pursuer's) right side. As the pursuer did so he gave a yell. The pursuer then got up. At that time Tidser did not know where the pursuer had hurt himself, but he assumed that it would have been his left leg or ankle by which he had been struck by the power pack. Paul Tidser accepted that he could have pushed the power pack too hard. He recollected pushing it with some force. The aim of the whole operation was to get the power pack moving quickly since the whole rescue task was being held up by want of an operative power pack. When the pursuer was struck by the power pack on his left leg he lost his grip of the item of equipment and fell over towards his (the pursuer's) right.
(c) There was also evidence from Mr Joseph McGurk - another firefighter - to the effect that as the firefighters were making up and collecting their gear after the completion of the rescue, the pursuer said to him that he had hurt himself earlier in the operation.
Credibility
In his submissions counsel for the defenders was critical of the credibility and reliability of the pursuer's account of the accident on a number of grounds.
The first of those grounds was this. In the course of his evidence when being asked about the reporting of the accident and the entry contained in the Accident Book - "hydraulic power pack slipped when being removed from appliance, causing torn ligaments to right ankle" - the pursuer volunteered that he was unfamiliar with official accident procedures because he had not previously been involved in an accident at work. Counsel had then put to the pursuer that in May 1992 he had attended Monklands Hospital after being involved in an incident in which a roof had fallen in. The hospital records (Pro.21/3) were said to show that he had been in such an incident in which the fall of the roof "nearly killed him". It was said that the pursuer could not have overlooked such an incident. The pursuer had also reported an accident recorded in the statutory Accident Book (Pro.25/1) on 18 May 1993.
Although the statement made by the pursuer in the course of his evidence that he had not previously been involved in an accident at work is evidently not strictly accurate, I am not disposed to attach much weight to this criticism. It would appear that neither of those previous incidents resulted in any significant injury or absence from work. The latter is in particular of apparent triviality and I believe the pursuer when he said that he had forgotten all about it. He did, on his memory being jogged, recall the former. Neither, however, gave rise to any claim for compensation or any significant absence from work. However, the thrust of the questioning while concerning the entry in the Accident Book was in relation to supposedly proper accident reporting procedures, it being put to the pursuer that he had knowledge of them. The questioning assumed the existence of some recognised reporting procedures but none were demonstrated in the evidence led by the defenders. In particular from the evidence of Sub Officer Downes it was plain that the entry eventually made in the Accident Book in relation to the Canniesburn Road incident on 26 December 1993 was not made in accordance with any recognised procedure but was simply composed by the Sub Officer after general discussion and supposition among his colleagues outwith the presence of the pursuer and in response to the pursuer's having telephoned to say that he would not be in for work because of his ankle injury.
Counsel for the defenders also criticised the pursuer's evidence on the basis that an apparently contradictory account of the accident was to be found in the hospital records relating to the pursuer's attendance at the Accident & Emergency Department of Monklands Hospital on 27 December 1993. The entry in the hospital records bears to record the pursuer's having "slipped on ice". Although it is, in my view, plain from all the evidence that the pursuer did suffer an ankle injury while attending at the Canniesburn Road accident, none of the witnesses suggested that ice was present or posed any problem. The defenders did not lead any witness to speak to or confirm the pursuer's having made the remark ostensibly attributed to him in the hospital records. The pursuer denied having made such a remark and in the circumstances and having also regard to his demeanour I believe that denial.
The account given in evidence by the pursuer was also subjected to detailed comparison with the narration of the circumstances of the accident as understood by the pursuer's expert witness Mr Greasely in his report (Pro.25/4) and set out particularly in paragraph 2.10 as follows:-
"As the pursuer got close to the bottom of the tailgate the power pack suddenly and quickly veered to the side. It hit the pursuer a glancing blow on his left leg. He was standing with both feet on the tailgate at the time. The blow caused him to fall off the offside of the tailgate and he landed heavily on his right foot turning his ankle in the process".
The particular discrepancy seized upon was that relating to the position of the pursuer's feet when his left leg was struck by the power pack. However, Mr Greasely's evidence was plain that his understanding of the circumstances was largely gleaned from a telephone call to the pursuer and other documents placed before him and that what is contained in that paragraph is not, and does not claim to be, an accurate quotation of anything said by the pursuer. Moreover I am not persuaded that the accuracy of the pursuer's recollection of whether his right foot was still on the tailgate or adjacent thereto has the importance or materiality which counsel for the defenders appeared to give it. I would not find it surprising if Mr Greasely formed in his mind a picture inaccurate in that particular detail, which was not important for the purposes of his report.
A further point advanced by counsel was that according to the oral evidence of Mr Mann, the consulting surgeon, when he first examined the pursuer in 1995 the history given was that of being struck on the right leg. Mr Mann's report of that examination was not a production. Mr Mann was giving effectively background evidence from recollection in relation to an injury which was in fact sustained in the right lower limb. I do not see much, if any, force in this point.
Some other criticisms of a generally similar nature were advanced in support of these particular criticisms but I do not think it necessary to rehearse them in detail. The credibility and reliability of Mr Tidser was also the subject of criticism by counsel for the defenders. The particular focus of this criticism was the inconsistency said to exist between the evidence given by Mr Tidser in Court and a memorandum written by him on 2 January 1994 which stated:-
"Myself and FF Logan were lifting a Lucas power pack from the tailgate of the HRV when the power pack slipped from FF Logan's grasp and struck him on the ankle".
I am not persuaded that, given its brevity and the nature of the operation upon which Tidser and the pursuer were engaged, the memo is necessarily to be read as a prior statement conflicting with Tidser's evidence. But in any event, in a memorandum of 12 May 1994 written in much fuller terms reflecting in greater detail the circumstances of the incident Mr Tidser wrote inter alia as follows:
"We both made our way back to the HRV with some urgency, the fresh power pack was slid out on to the tailgate, and I lowered it to ground level. FF Logan was pulling and guiding the power pack off the tailgate and I was pushing from the rear. It was at this point the power pack veered to the side of the tailgate and strike [sic] FF Logan on the left ankle which left him reeling in pain. However we managed to struggle back to the incident area, pausing every 20 or 30 yards".
It was put to Tidser that he might have spoken with the pursuer about the accident in the interval between it and the writing of this memo, to which Mr Tidser assented explaining that he and the pursuer were friends and colleagues. He also accepted that the discussions about the accident might have affected his recollection. He also freely accepted that as a friend of the pursuer he would be pleased for the pursuer were the pursuer to receive compensation for his injury. It is to my mind wholly understandable that as a friend and colleague of the pursuer, Mr Tidser should talk about the accident in the interval following it and that he should be pleased for his friend were his friend to be compensated.
I have considered the criticisms of the evidence given by the pursuer and Mr Tidser and have looked at the criticisms individually and collectively. I am not persuaded that there is any sound basis for rejecting, or treating as unreliable, the evidence given by the pursuer and Mr Tidser regarding the essential circumstances of the accident.
The immediate circumstances of the accident
Accepting in its essentials the evidence given by the pursuer and Mr Tidser I conclude that the immediate mechanism of the accident was as follows. The power pack was being slid along the tailgate which was slightly tilted or declined towards the rear. Mr Tidser was at the end of the power pack closest to the interior of the HRV and was pushing the power pack towards the rear offside corner of the tailgate. The pursuer was at the opposite end of the tailgate and guiding and pulling it. In the course of the manoeuvre the power pack unexpectedly slewed and struck the pursuer on the lower part of his left leg. The slewing in the movement of the power pack and its striking the pursuer on his left leg caused the pursuer to overbalance and fall to his right. In the course of that fall the pursuer went over on his right ankle and consequently sustained the injury to it.
Associated factual matters
It is convenient to discuss at this point certain associated factual matters canvassed in the evidence.
(a) Hydraulic fluid: although the suggestion was made that the tailgate might have been contaminated by the spillage of hydraulic fluid or oil the general tenor of the evidence given was that while oil or fluid might be spilled on the tailgate in the process of returning equipment after it had been used, it would not be likely that spillages would occur in the course of unloading the equipment prior to its use at the scene of an accident. In particular there was no evidence that specifically on this occasion any oil or fluid was present on the tailgate. I conclude that no such contamination has been established.
(b) The manoeuvrability of the power pack: The pursuer, Mr Tidser and Mr McGurk all spoke to the considerable difficulty experienced by firefighters in carrying or otherwise manoeuvring the power pack. The principal reasons for this were (i) that the power pack was very heavy, the total weight being, as already narrated, some 83kgs and (ii) that with the hose reel component bolted on to the frame of the pump, it was not balanced if one gripped the frame (which, from the photographs, one could see as being the natural way in which to attempt to lift the power pack). Because of its weight and awkwardness two men carrying the power pack required to pause at intervals of a few yards in order to rest and regain strength. It was also evident that the weight and awkwardness of the power pack was a reason for the practice of pushing the power pack along the floor of the HRV and across the surface of the tailgate. The practical experience of the firefighters was confirmed in the perhaps more theoretical analysis given by Mr Greasely who pointed to the particular origin of those problems in the combination of the pump and reels into a single unit.
(c) Training: The pursuer, Mr Tidser and Mr McGurk all stated in evidence that they had not been given specific training in how to lift and carry heavy items such as the power pack. Although Sub Officer Downes gave evidence under reference to No.27/8 of process of the holding of "drills" and other training exercises, his evidence as to the actual content of those training drills was inspecific and, notably, did not include the suggestion that any training in proper lifting or manual handling techniques was included. I therefore have no reason to reject the evidence given by the pursuer and his former colleagues that he and they were not given such specific training in manual handling techniques.
(d) Trolleys: It is contended by the defenders in their pleadings (Closed Record 16C) that the pursuer and Tidser should have used a trolley to transport the back up power pack to the scene of the road traffic accident. In his evidence Mr McGurk who had served for 6 years on the HRV deponed that should the back up power pack be required, it was not the practice to use a trolley for this transport. For his part Mr Tidser explained that it was not the practice to use a trolley for that purpose and that on this occasion while it would in theory have been possible to take a trolley, when he and the pursuer were detailed to get the spare power pack the trolleys were at a distance and, importantly, still laden with other items of equipment. Sub Officer Downes' evidence appeared to confirm that the trolleys remained laden with equipment. He did not maintain that the pursuer and Mr Tidser should have used a trolley. In these circumstances I conclude that the defenders have not established that, in the circumstances facing the pursuer and Paul Tidser, normal practice dictated that they should have used a trolley.
The Manual Handling Operations Regulations 1992
In relation to liability the leading submission made by Miss Dorrian, who appeared for the pursuer, was that the accident was caused through the defenders' breach of the statutory duties placed upon them by Regulation 4 of the Manual Handling Operations Regulations 1992 ("MHOR").
Manual handling operations are defined by Regulation 2 of MHOR as meaning - "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force". It is plain therefore that the task upon which the pursuer and Mr Tidser were engaged in taking the power pack from its position within the HRV to the scene of the road traffic accident involved manual handling operations.
Regulation 4 of MHOR applies to any manual handling operations at work which involve a risk of employees' being injured. In a passage of his Opinion in Anderson v Lothian Health Board 1996 S.C.L.R.1068, which was approved by the Second Division in Cullen v North Lanarkshire Council 1998 S.C.451, Lord Macfadyen said:-
"For there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability".
In his evidence Mr Greasely (the consulting Health & Safety Engineer led for the pursuer) pointed to features of the task which in his view presented a foreseeable risk of injury. He referred to the Guidance on MHOR published by the Health & Safety Executive (Pro.25/5) according to which the maximum guideline weight for a one man lift was 25kg. With two men lifting as a team the equivalent guideline figure was 33kg. The power pack was thus not only far too heavy for one man but was much too heavy even for two men. The Guidance (page 43, para.8) recognised of course that the guideline weights were not limits and might be exceeded where more detailed assessment showed that to be appropriate. The Guidance continued thus:-
"However, even for a minority of fit, well trained individuals working under favourable conditions any operations that exceed the guideline figures by more than a factor of about two should come under very close scrutiny".
The weight of the power pack was some two and a half times the guideline figure. Moreover, firefighters were not working in "favourable conditions". They would be impeded by their protective clothing. The guideline figures should be reduced where carrying was involved (page 44, para.14) and for frequent lifting (page 44, para.13). Manually handling the power pack accordingly gave rise in Mr Greasely's view to a foreseeable risk of injury.
I accept that view. It is not, I think, difficult to conclude that pushing, lifting or carrying the 83kg power pack carried a risk of injury to those engaged in thus manhandling it. I accordingly consider that Regulation 4 applied to the operation on which the pursuer and Mr Tidser were engaged.
Counsel for the pursuer submitted initially that Regulation 4(1)(a) had been breached. That provision states that each employer shall "so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured;". Counsel submitted that, as was made clear in the decisions in Anderson and Cullen, the onus was on the defenders to show that it was not reasonably practicable to avoid manual handling operations and, said counsel, since the claim in the pleadings that trolleys were provided and available for this task, had not been established in the evidence it followed that the defenders had not discharged that onus.
The difficulty with that submission (as I think Miss Dorrian herself recognised) is that it was plain that even were a trolley available the power pack would yet require to be manhandled onto the trolley and off the trolley. As Mr Greasely put it in the course of his evidence, manhandling was inevitable at some point in the operation and in essence his view was that the appropriate focus should be on the assessment of risks and the taking of measures to reduce the risks. In these circumstances I consider that no breach of paragraph (a) of Regulation 4 has been established.
Counsel for the pursuer submitted alternatively that there had been a breach of sub-heads (i) and (ii) of para.(b) of Regulation 4 of MHOR which provides that every employer shall:-
"(b) Where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured -
(i) 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,
(ii) 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,"
I find it convenient to consider first the submissions made as respects sub-head (ii) [reduction of risk]. Miss Dorrian submitted, in my view correctly, that having regard to the decisions in Anderson and Cullen the onus lay with the defenders to show that they had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. Miss Dorrian further submitted that the defenders had failed to discharge that onus and in support of that submission relied upon, inter alia, the evidence of Mr Greasely.
In his evidence Mr Greasely indicated a number of steps which he said might have been taken to reduce the risk of injury. Principal among these was the step (specifically averred on the pursuer's behalf in the Closed Record 9C) of separating the two components of the power pack. The hose reel assembly was a free-standing unit. By using quick release couplings on the hoses the two units could be kept as separate units which could be quickly connected to each other. Separated into two independent components each item would weigh about 40kgs and could thus be manoeuvred individually. As such separate units they would be much safer for transport by a two man team. At 40kgs they would be coming close to the guideline figure for a two man lift. There would be no need to push and pull the units along the floor of the HRV and across the tailgate, since they could be carried individually out of the vehicle and to the scene of the accident. Further, each of the two components would, if separated, present a more balanced load than they would if combined together.
In their pleadings the defenders respond to this suggestion by averring (Closed Record 12C) -
"Admitted that the reel and generator were two separate units which had been bolted together under explanation that they were bolted together for sound operation [sic] reasons. The operation of release fastening would have cost firefighters valuable time and it would have required more firefighters to transport same".
In support of those averments the defenders led the evidence of their employee, Mr Griffin, who served at Easterhouse for 9 years as a Sub Officer but had been recently moved to be a Station Officer in Paisley. Mr Griffin explained that when the power pack components arrived at Easterhouse they were already bolted together. They were thus supplied to the Fire Station in that fashion. He personally preferred that arrangement. Mr Griffin said however that if the equipment had been supplied with the components split into two they would have used it in that split fashion. The advantage of keeping the units bolted together was that the firefighters operating the power pack required to make only four hose connections instead of eight. If the units were separate one would need four men to transport them or alternatively two men to make two trips. Mr Griffin accepted however that in its combined form the power pack was a very heavy and awkward piece of equipment and that to carry it any distance presented its own problems. Perhaps more importantly, in relation to the need to have four firefighters rather than two he frankly volunteered that shortage of personnel at an incident was not generally a problem. Further, Mr Griffin stated that if the power pack was operated in the combined mode and had to be carried for any significant distance there would in any event need to be additional men to carry it in relays. He agreed that it would be safer and easier to lift and move the power pack were its components separated. Mr Griffin further stated that in other fire stations in the Strathclyde area the power pack components were kept separate. They could not be stored in the combined, unitary form in the space available in the appliances at those other fire stations which did not have an HRV.
I am not persuaded by Mr Griffin's evidence that there were "sound operational reasons" for combining the pump and the hose reel in a single unit. Mr Griffin expressed a personal preference for the combination on the view that the reduction in the number of hose connections from eight to four saved time. However, it did not appear from his evidence, or indeed from Mr Greasely's evidence, that the making of a hose connection was in itself an operation which was in any way time consuming. It was also accepted by Mr Griffin that in its combined form the power pack was very heavy and awkward necessitating a relay of personnel to carry it, were it to be carried over any distance. In any event, said Mr Griffin, there was not usually any shortage of personnel at such incidents. Other fire stations used the equipment in its separated arrangement and it was not suggested that they suffered any significant disadvantage by doing so. My distinct impression from the evidence given by Mr Griffin was that the power pack was used on the HRV in its combined form simply because it was delivered to the Easterhouse Fire Station in that arrangement and no real thought had ever been given as to the questions of safety to the personnel balanced against other operational considerations. I therefore conclude that the defenders have not established that it was not reasonably practicable to take the step of separating the two components. That step would have materially reduced the risk of injury to those engaged in the manual handling of this equipment. As the pursuer stated in his evidence it would have allowed the units to be carried and thus would have obviated the need to push and pull the power pack over the tailgate.
In my opinion therefore the defenders were in breach of Regulation 4(1)(b)(ii) of MHOR. Had they performed their duties under that provision the accident to the pursuer would not have occurred. The defenders are accordingly liable to the pursuer in damages.
In view of that finding I can deal perhaps more briefly with the other steps which Mr Greasely proffered as ways of reducing the risk of injury to those engaged in manhandling the power pack and which were relied on additionally by counsel for the pursuer.
Firstly, a non-slip surface in the shape of an epoxy paint with grit could have been applied to the surface of the tailgate. Such a non-slip surface had in fact been applied by the time Mr Greasely conducted his inspection of the HRV so the practicability of that step was not in doubt. On the other hand, Mr McGurk, who did have some experience of the new surface, did not think that the non-slip surface had any discernible effect on the ease or difficulty of sliding the power pack and I am not persuaded that in itself this precaution, however desirable for other reasons, would have had any causative rôle in preventing the pursuer's accident. Mr Greasely also suggested the provision of handle grips but counsel, in my view rightly, did not place much reliance on that provision as a means whereby this accident would have been avoided.
More importantly Mr Greasely suggested that a sack barrow would have been a useful means of transporting the power pack and would have avoided the need to push the power pack across the tailgate and carry it to the scene of the road accident. It was not suggested by the defenders in the evidence led on their behalf either that a sack barrow could not have been used or that it was not reasonably practicable to have provided one on the HRV or that its provision would not have avoided the need to push and pull the power pack across the tailgate. Accordingly in this respect also I consider that a breach of Regulation 4(1)(b)(ii) of MHOR has been demonstrated.
A further step which might have been taken was to train the pursuer and his colleagues in appropriate manual handling techniques. I have already discussed the evidence in relation to training in those techniques and have accepted the evidence of the pursuer that he was not so trained. Accordingly in this respect also it may be said that the defenders have failed to show that they fulfilled all their duties under Regulation 4(1)(b)(ii).
I revert now to the submission on behalf of the pursuer that the defenders were in breach of their statutory duty under sub-paragraph (i) of Regulation 4(1)(b) [Assessment of Risk]. There was no evidence that the defenders had carried out any assessment of the risks involved in handling the power pack as a combined unit. Production 27/8 contained initial risk assessments but it was evident from their terms that the assessments treated the two components separately. It may be observed in passing that the assessments did indicate a need for training in manual handling techniques as respects these two separate components. It thus appears that the especial problems of the power pack were not addressed in the assessment - which may be explicable in light of Station Officer Griffin's evidence that elsewhere in the Strathclyde Fire Brigade the units were deployed separately.
While counsel for the pursuer founded on this breach as also giving rise to liability, I am not satisfied that a breach of the duty to make an assessment in itself gives rise to liability in damages. One can understand the legislative intention that employers should endeavour to formalise their approach to employees' safety by carrying out assessments. A failure to carry out that statutory obligation may be of evidential significance in deciding whether the employer has fulfilled the substantive duties in relation to working systems imposed by, for example, sub-paragraph (ii) of the Regulations [Reduction of Risk]. However, if an employer shows that he has in fact done all that could be required of him by reduction of risk to the lowest level reasonably practicable it seems to me to be immaterial that he may have achieved that result without having gone through the formal stage of carrying out an assessment. It appears to me that generally it is the failure to fulfil the substantive duty of taking proper precautions to reduce the risk of injury which will give rise to liability rather than the procedural obligation to carry out an assessment.
The common law cases
In addition to alleging breach of statutory duty the pursuer also pleads a case of common law fault against the defenders on the basis of their alleged failure to provide a safe system of work (Article 3 of Condescendence). In summary, the failures alleged against the defenders were largely the steps identified by Mr Greasely as steps which would have reduced the risks of injury and which I have already narrated. Had it been necessary for me to do so, I would have been inclined to uphold Miss Dorrian's submission that the defenders were at fault. My reasons for reaching that view are, briefly, as follows. It is plain that the power pack presented a heavy and awkward load for two men to handle. There was some evidence of at least unhappiness amongst the men about this but, importantly, it is apparent from all the evidence that transporting the equipment comprised in the power pack could have been done more safely and without the need or temptation to push and pull it along the tailgate had the components been separated. The components were apparently used elsewhere in the Strathclyde Fire Service in their separate form. They were separately assessed in Production 27/8. It was evident from what Mr Griffin said that the reason for which the units were combined on the HRV was simply because they were supplied to Easterhouse in that combined state. The risk of injury to those engaged in manhandling such a heavy and awkward load was plain and I infer from the evidence of Mr Griffin, and the absence of any risk assessment, that proper consideration had not been given to the safety of the firefighters. I therefore consider that, by that omission, the defenders' negligently allowed an unsafe system of work to be followed.
The pursuer also pleads that Mr Tidser was personally at fault and that the defenders are vicariously liable for that fault. The ground upon which blame is placed upon Mr Tidser is, put shortly, that he pushed the power pack too hard by reason of which it veered or slewed. Whilst pointing out that if he had not pushed the power pack with some force it would not have moved, Mr Tidser accepted in his evidence as the apparent immediate causal mechanism of the power pack striking the pursuer's leg that he, Mr Tidser, could have pushed it too hard. He said that he remembered pushing it with considerable force. He pointed out that he and the pursuer were moving quickly, in order to get the power pack to the scene of the road traffic accident, and he may have pushed it more quickly and more forcefully than the pursuer was prepared for. In the light of that evidence counsel for the pursuer submitted that Mr Tidser had been negligent in pushing the power pack too hard and had thereby contributed to the accident.
Counsel for the defenders submitted that the defenders could not be held vicariously at fault since it had not been put expressly to Mr Tidser that he had failed to take reasonable care. All that had been put to and accepted by Mr Tidser was that he might have pushed the power pack harder than was needed. That, however, said counsel, did not necessarily imply a failure to take reasonable care. Had the allegation of negligence been put to him in express terms, Mr Tidser might have had an explanation for denying the allegation.
In my opinion, whilst it may frequently be advisable expressly to put to a witness who is being blamed for an accident that he was negligent and did not take proper care, I do not consider that it is essential to put that allegation in express terms. The implication that the witness was at fault may be inherent in the terms of the questions or indeed implicit in his answer. The general tenor of the questions put to Tidser carried the implication that he had used excessive force in pushing the power pack. In the circumstances, having regard to the evidence of Tidser and the pursuer, I consider that Mr Tidser did push the power pack too hard and that, although faced with an unsafe system with which the primary and major causative rôle must lie, he yet made a relatively minor negligent contribution to the accident. (I would also observe that counsel for the defenders did not seek to elicit from Mr Tidser any explanation for his evidence of having pushed too hard).
Damages: Disputed items
My task in assessing damages has been made lighter by the agreement reached between counsel on solatium, past loss of earnings, interest relative to those items and the amount of the net earnings which the pursuer would be receiving were he still in the defenders' employment. The items of loss remaining in dispute are (a) future loss of earnings; (b) loss of pension rights and; (c) services. Before turning to consider those items in more detailed terms it is perhaps helpful to record a brief summary of the medical position.
The pursuer did not suffer any fracture of the bones of his ankle but he sustained ligamentous damage which made little progress towards healing. In May 1994 the pursuer underwent a surgical reconstruction operation on his ankle which was carried out at Monklands Hospital. This, however, produced little enduring help and in May 1997 an arthrodesis of the ankle was carried out.
According to the consultant surgeon Mr Mann the pursuer has significant and permanent restriction of his mobility by reason of the condition of the right ankle. The ankle is of course stiff and movements of the foot are limited. The disability from which the pursuer suffers restricts his employment prospects. For example, he should not be engaged in activity involving walking over rough ground. He should not be trying to run. He should not be standing for lengthy periods or climbing stairs at frequent intervals.
The injury plainly rendered the pursuer permanently unfit for work as a firefighter and he was retired from the Fire Service on grounds of permanent incapacity on 29 December 1994. Since the accident the pursuer has not held any employment but he has sought to develop his interest and talents as an artist and illustrator. He deponed that he had done illustrative work for charity.
Future Wage Loss:
The pursuer is now aged 34 and had he continued in the Fire Service he would have retired at age 53 having completed 30 years service. Counsel were agreed that were the pursuer still employed in the Fire Service his net annual earnings would be £12,827. In approaching the issue of future wage loss, counsel for the pursuer referred to the decision of the House of Lords in Wells v Wells [1998] 3 WLR 329 and thence to the Ogden Tables (3rd Edition). She submitted that in view of the fact that the pursuer's retiral age was 53 (for which no Ogden Table was directly applicable) one should take Table 5 dealing with multipliers for males with the pension age of 60 and assume the pursuer's age to be 40. Adopting the 3% net discount assumption counselled by the House of Lords would give a multiplier of 14.5. Reduction for contingencies in accordance with the Notes to the Tables would produce, said counsel, a reduced multiplier of about 11.5. Counsel then properly recognised that the pursuer has, of course what she termed a residual earning capacity which could only be very broadly assessed. That would entail a further reduction and she suggested a multiplier of 9 to be applied to the agreed figure for the pursuer's current net annual earnings were he in the Fire Service.
Counsel for the defenders submitted that one was "not in Wells territory". He submitted that the decision of the Inner House in O'Brien's curator bonis v British Steel plc 1991 S.C.315 in any event established that in so far as it was necessary to have regard to the rate of return on investments the percentage return to be assumed was 4.5% and that decision was still binding in Scotland. The pursuer plainly had reasonable employment prospects. He was fit for office work. The evidence was that he was intelligent and articulate and had previously worked as a computer salesman. The proper approach was to award damages on a lump sum basis sufficient to allow the pursuer to retrain and find work and counsel for the defenders suggested the sum of £25,000.
Dealing first with the submission of counsel for the defenders to the effect that the decision in O'Brien's curator bonis still requires the Scottish courts to assume the greater return of 4.5% p.a., I have to say that in my opinion in so far as it counsels the assumption of in current times of a net discount rate of 3%, the decision of the House of Lords in Wells is one which it is appropriate to follow in Scotland. The Inner House decision in O'Brien's curator bonis was before the House of Lords and I see nothing in the speeches or decisions in Wells to indicate that when the House held that 3% should be the assumed net discount rate it was dealing with any matter peculiar to English law.
However, if one follows the approach contended for by counsel for the pursuer, it is plain that the Ogden multiplier, adjusted for contingencies, of 11.5 requires to be further discounted to take account of the pursuer's current and future earning capacity. The estimation of that earning capacity, and consequently the amount of the further reduction in multiplier, can only be done in very broad terms. However, the fact that the apparent precision of the Ogden tables must yield at that point to the imprecision of that broad estimation does not mean that no assistance may be gained from the tables and that one must revert to the lump sum approach suggested by defenders' counsel or to the previous practice of the courts in relation to multipliers, the latter of which must be assumed as proceeding on the basis of an assumed discount rate of 4.5% rather than the 3% rate adopted by the House of Lords in Wells.
Although the pursuer has the limitations on his mobility which I have already narrated, it was the view of Mr Mann that the pursuer should be able to walk without a stick except for longer distances. Prior to entering the Fire Service he had performed less physically demanding work as a computer salesman. His partner, Anne Marie O'Donnell, described the pursuer as being articulate and intelligent - which was also my impression of him. He evidently has talent as an artist and whilst hitherto he has not sought other employment compatible with his disability but has instead developed his artistic talents on a largely non-remunerated basis, it appears to me that there are employment opportunities available to him. In my estimation his future residual earning capacity should attract a greater reduction in the multiplier than that proposed by Miss Dorrian. I would on that approach regard as more appropriate a multiplier of the general order of 6, which when applied to the multiplicand of £12,827 would result in a product of £76,962. Another approach which might be used to test a selected discounted multiplier would be to endeavour to form some view of a possible average annual reduction in net income (taking account of possible periods of unemployment) and apply an unreduced multiplier to that figure. It is of course not possible to determine that figure with any precision but it seems to me not unreasonable in the pursuer's case to postulate an average annual loss of say £4,500, which I do not think to be ungenerous. Assuming the pursuer would have worked to some extent beyond retirement up to the age of 60, and qualifying the 3% multiplier in Table 5 for contingencies in accordance with the Notes to the Tables, gives a multiplier of 16.19. When applied to the figure of £4,500 that multiplier gives a product of £72,855. Having regard to these two products I have reached the conclusion that future wage loss should be assessed in the figure of £75,000.
Pension loss
The pursuer was a member of the Fire Brigade Pension Scheme, of which all whole time firefighters are members. The scheme is based on the Fireman's Pension Scheme Order 1973 as amended by subsequent statutory instruments. However, counsel did not refer to the statutory instruments but proceeded instead on the basis of what was set out in the explanatory booklet No.21/10 of process.
The pursuer was born on 5 August 1964. He joined the Fire Service on 1 February 1988 and was retired from it on medical grounds on 29 December 1994 having thus served 6 years and 332 days (see No.21/9 of process). A firefighter who retires on non-medical grounds after having accumulated 5 years' service is entitled to an "Ordinary Pension" calculated on the basis of 1/60th of average pensionable pay for each year of service up to 20 years and 2/60th of that pay for each year in excess of 20. The maximum period of service is 30 years. Accordingly, had the pursuer continued in the Fire Service until 1 February 2018 he would have qualified for a pension of 40/60th of his average pensionable pay payable from that date. Had he retired earlier, with less than 25 years service, he would have been entitled to a deferred pension calculated on the basis of his length of service as already mentioned. If a firefighter (having served 5 years or more) leaves the service on medical grounds he does not receive any Ordinary Pension. Instead he receives what is termed an "Ill Health Pension" and in a case in which the medical incapacity arose as a result of an injury sustained in the course of his employment and without fault on his part, a firefighter is entitled to an additional pension termed "Injury Pension" and a lump sum injury gratuity. For a firefighter whose length of service lies between 5 and 10 years the Ill Health Pension is calculated as 2/60th of average pensionable pay in respect of each year of service and is payable from the date of his medical retiral. The amount of the Injury Pension depends partly on length of service and partly on the degree of disablement, there being 4 bands of length of service and 4 bands of degree of disablement. The pursuer fell within the band consisting of 5 to 15 years of service and his disability fell within the band of 25 to 50% degree of disablement. This meant that the starting point for the actual calculation of his Injury Pension was 50% of his average pensionable pay. The sum so resulting then fell to be reduced by 75% of the amount of the Ill Health Pension. The pursuer is accordingly in receipt of (a) an Ill Health Pension and (b) an Injury Pension, the respective current monthly amounts of which are agreed in a Joint Minute. The pursuer has received those pensions since his retiral.
The averments made by the pursuer in regard to this topic consist of the single sentence - "he has lost pension rights". Evidence was led on the pursuer's behalf from an actuary, Mr Peter Wylie, whose reports constitute No.27/3 of process. The actual figures in the report contain regrettable inaccuracies but for present purposes it is, I think, not necessary for me to address those inaccuracies. After projecting forward an assumption that until at least 2018 wages would rise annually at a rate 2% greater than prices, Mr Wylie envisaged a loss accruing annually from 2018 (when the pursuer would otherwise have retired on a full Ordinary Pension). Mr Wylie calculated the amount of that annual loss by deducting from the annual amount of the Ordinary Pension only the amount of the Ill Health Pension. He did not make any deduction for the Injury Pension. Nor, in endeavouring to quantify the present capital value of the shortfall thus identified, did Mr Wylie have any regard to the fact that the Ill Health Pension and the Injury Pension are payable from the date of the pursuer's retiral in December 1994.
Mr Stewart, who appeared for the defenders, contended in his submissions firstly that in considering whether the pursuer had suffered any loss of pension scheme benefits, account should be taken of the benefit currently being paid under the scheme. Termination of service on grounds of ill health involved, under this particular scheme, an accelerated payment of benefits and it was not disputed that the total amount of the benefits payable in the period between December 1994 and death would greatly exceed the amount which would be payable in respect of a full Ordinary Pension paid from February 2018 to death. If, contrary to that submission, one left out of account any benefits paid prior to 2018, Mr Stewart's alternative position was that in assessing the annual differential arising after February 2018 the Injury Pension should be taken into account as well as the Ill Health Pension. Some allowance should also be made for the incidence of income tax on the gross figures which Mr Wylie had used. Thereafter a multiplier which took account of contingencies should be selected as had been done in Mitchell v Glenrothes Development Corporation 1991 S.L.T.284.
Counsel for the pursuer on the other hand maintained that the Injury Pension was to be distinguished from the Ill Health Pension because it could be the subject of adjustment if the condition of the pensioner were to improve. She also referred to Lewicki v Brown & Root Wimpey Highland Fabricators Ltd 1996 S.L.T.1283 for support, as I understood it, for the view that payments prior to the hypothetical retiral date should be disregarded. Alternatively, on the assumption that the Injury Pension did fall to be taken into account in the period after retiral, the fact that it might be adjusted if the condition of the pursuer improved should be reflected in the assessment of the amount of the pension loss.
I do not consider that the fact that the amount of the Injury Pension may be adjusted in the event of an alteration in the degree of disability is a sufficient reason for treating the Injury Pension as being different in principle from the Ill Health Pension for these purposes. In substance the Injury Pension is an enhancement of the Ill Health Pension simply to reflect the fact that the medical incapacity arose from an incident occurring during service. The possibility of its amount being adjusted is something which may complicate the actual calculation or assessment of loss of pension benefits but it is not in my view a reason in principle for leaving the Injury Pension out of account. I have also reached the view that Mr Stewart is correct when he contends that in judging whether the pursuer has suffered a loss of pension benefits under this particular scheme, account should be taken of the pension benefits received between 1994 and 2018. In the Lewicki case the contention there advanced for the employers was that the disability benefits payable under the insurance scheme should be set against past and future wage loss. That contention, rejected by the Court in Lewicki, is not advanced in the present case. One is here concerned with the very different question of alleged loss of pension benefits. In my view counsel for the defenders was correct in his suggestion that what one required to examine was the value of the benefits which the pursuer would have received had the accident not happened and the value of the benefits which he will receive in the circumstances which have happened. Inherent in that comparison is the necessity of taking into account the acceleration, from 2018 to 1994, of the date of payment of benefits. Since, as I understand it, it is not disputed that if account is taken of that acceleration, the pursuer will receive from the scheme more than he would have received had the accident not occurred and he had continued until retiral in 2018, I accordingly consider that the claim for loss of pension benefits has not been substantiated.
If I were wrong in thus accepting Mr Stewart's submission that one looks at the totality of the benefits, including benefits paid between 1994 and 2018, I would also have accepted his alternative submission that in any event the Injury Pension should be taken into account in assessing the post-2018 differential. The relevant annual amounts of the Ordinary Pension, the Ill Health Pension and the Injury Pension are £10,796, £3,730 and £5,300 respectively. Deduction of the last two from the first gives a differential of £1,766 per annum. Accepting that some reduction for the incidence of income tax is required, but conversely recognising the possibility of a reduction in the amount of the Injury Pension on a reassessment of the degree of the pursuer's disability, I would have taken a differential of £1,750 to which (following the approach in Mitchell v Glenrothes Development Corporation), I would have applied a multiplier of 5 giving a product of £8,750 in respect of the pursuer's pension loss. Had I concluded that no allowance should be made for the Injury Pension, I would have taken Mr Wylie's differential of £7,066 gross and, subject to discounting it to say £6,500 to take account of tax, would have applied the same multiplier to that discounted figure of £6500.
Services
The evidence concerning services was in short compass. At the time of the accident the pursuer and his partner, Anne Marie O'Donnell, had a 3 month old daughter. A second daughter was born in 1995. During January 1994 the pursuer's ankle was in plaster for a period of about 10 days. He had a further spell in plaster of paris after the attempted reconstruction operation in May 1994 and his ankle was also in plaster for a number of weeks following the arthrodesis in 1997. Miss O'Donnell gave evidence while the pursuer was in plaster she required to help him to dress and undress. There were also no doubt other acts of assistance which she performed to help him overcome these particular obstacles to his daily living. The pursuer's injury and his being in plaster appears to have prevented him, understandably, from doing a lot of the things about the house which he would have done particularly having regard to the fact that he and Miss O'Donnell had a young baby. He was not able to assist by doing shopping, walking the dog or otherwise relieving Miss O'Donnell of household tasks in such a way as to make it easier for her to care for the baby.
So far as the future is concerned although it is apparent and may be inferred that Miss O'Donnell will continue to assist in a variety of basic fetching and carrying tasks it was not suggested that the pursuer required, or was likely to require, any assistance with dressing or personal hygiene by reason of his disability. There are probably a number of household tasks as respects which the pursuer is now impeded in making the contribution which he would otherwise have made. Miss O'Donnell said that, for example, the pursuer was still unable to carry heavy shopping. But beyond that generality nothing specific was demonstrated.
In her submissions counsel for the pursuer appeared to accept that the assessment of the appropriate award for the services was a matter of broad judgment. She suggested for services to date a figure of £10,000 to £12,000 divided equally between the claim under section 8 and the claim under section 9. As respects the future she suggested that the cost proceed on the basis of a figure of £500 per annum for the section 8 claim and a figure of £750 per annum for the section 9 claim and apply a multiplier from Table 1 of the Ogden Tables for a 34 year old, that is to say 23.09. Application of that multiplier in the way suggested by counsel for the pursuer would produce figures for future services of £17,317 and £11,545 respectively which, added to the total of £12,000 for past services would produce a total figure for the services claims of £40,862.
Mr Stewart for the defenders pointed to the limited nature of the services involved and referred to the unreported decision of Lord Osborne in Roberts v John Johnston & Son (26 June 1998) in which in a case said to be not dramatically dissimilar from the present Lord Osborne had allowed £8,000 for past services and £1,500 for future services. Counsel for the defenders submitted that that decision indicated more accurately the proper order of figure which should be allowed.
In my opinion, in a case such as the present, the damages claimed in respect of services claimed can only be assessed on a very broad axe, lump sum, basis. In doing so I consider it appropriate to have regard to the general level of awards for such claims including decisions such as Roberts and the very limited nature of the personal services involved so far as demonstrated in the evidence tendered in this case. In these circumstances I shall allow £5,000 for past services and £7,000 for future services. There being no opposition to the pursuer's counsel's invitation that the awards be split equally between the section 8 and section 9, I shall accede to that invitation.
Summary of the award
The award of damages may be summarised as follows:-
| | | £ | £ |
| I | 1. Solatium (agreed figure), whereof 60% agreed as past solatium | 17,000 | |
| | 2. Add interest at 4% per annum from 26.12.93 on 60% thereof | 2,040 | 19,040 |
| II | 1. Past loss of earnings (agreed figure) | 45,530 | |
| | 2. Add interest at 4% per annum from 26.12.93 | 9,106 | 54,636 |
| III | Future loss of earnings | | 75,000 |
| IV | 1. Past Services | 5,000 | |
| | 2. Add interest at 4% per annum from 26.12.93 | 1,000 | 6,000 |
| V. | Future Services | | 7,000 |
| | | TOTAL | 161,676 |
I shall therefore uphold the first plea-in-law for the pursuer, grant decree for payment by the defenders to the pursuer of the sum of £161,676, and quoad ultra repel parties' pleas.
| | OPINION OF LORD EASSIE in the cause JOHN LOGAN Pursuer; against STRATHCLYDE FIRE BOARD Defender: ________________ |
Act:Dorrian, Q.C., Allardyce
Thompsons
Alt:Stewart, Q.C., Grant-Hutchison
Campbell Smith, W.S.,
12 January 1999