A labourer who sued his former employers after developing post traumatic stress disorder following a fire at a power station from which he had to be rescued has had an appeal in his action for damages dismissed.
The Inner House of the Court of Session upheld the decision of the Lord Ordinary to refuse the claim.
Lord Brodie, Lord Drummond Young and Lord Glennie heard that the pursuer and reclaimer Melville Dow raised the action for personal injury against the defenders and respondents AMEC Group over an accident which occurred in March 2009 while he was working in the course of his employment as a labourer with the defender on a building known as Absorber Unit 3 at Longannet Power Station in Alloa.
The pursuer was working on the roof of the Absorber when he became aware that a fire had broken out, engulfing the building in thick black smoke.
According to his statement of claim, prior to the fire there had been exits at a number of sides to the building, but at the the time of the blaze the only way to exit the roof was to use stairs at the east side of the building and it was impossible to use those stairs to exit the roof due to the fire and smoke.
The pursuer was unable to make his way to ground level and became agitated and afraid, concerned that the building would explode and that he would die.
However, within 13 minutes he was reached by rescue personnel, who provided him with breathing apparatus and assisted him as he was taken down to ground level on the platform of an extendable mechanical arm known as a “cherry picker”.
The pursuer did not suffer any physical injury during the events of 23 March 2009, but he claimed that as a result of his experience he developed chronic PTSD and associated pervasive “depressive symptoms”.
He sought damages from his former employers, relying on breaches by the defender of obligations imposed by two statutory provisions: section 53 of the Fire (Scotland) Act 2005 and regulation 40 of the Construction (Design and Management) Regulations 2007 (CDM Regulations).
The Lord Ordinary accepted the pursuer’s evidence as to the effect that his experience on the Absorber had on him, the efforts he made to return to work, and the difficulties he faced, both practical and emotional, in doing so at a point in time materially earlier than when he did in fact obtain employment, in May 2015.
She assessed damages in respect of solatium and patrimonial loss at a total of £223,017.
However, the Lord Ordinary held that the pursuer had failed to prove breach of the obligations imposed by section 53 of the 2005 Act, regulation 40 of the CDM Regulations or any of the other provisions pled and accordingly she assoilzied the defender.
Lord Ordinary ‘erred in fact and law’
The pursuer reclaimed against the Lord Ordinary’s decision that on the facts found by her there was not a breach of either section 53 or regulation 40, while the defender cross-appealed on the Lord Ordinary’s failure to hold that even had the defender been in breach of either of the statutory provisions he would not have been entitled to recover damages in respect of psychiatric harm without any physical injury.
On behalf of the reclaimer, Simon Di Rollo QC argued that the Lord Ordinary erred in fact and law in a number of respects.
It was submitted that the judge had erred in her construction of section 53. Contrary to what had been found by the Lord Ordinary, section 53(1) created a duty to ensure the safety of the pursuer in respect of the harm caused by fire subject to a defence of reasonable practicability.
Further, it could not be held that fire was not foreseeable and there was no evidence that all reasonably practicable measures had been taken to prevent the outbreak and spread of fire, nor was there evidence that any measures whatsoever were taken in relation to means of escape.
It was also argued that the duty imposed by regulation 40 of the CDM Regulations was “absolute” and that there had been a breach, as the evidence did not disclose that the defender had complied with the requirement to provide a sufficient number of suitable emergency routes and exits to enable any person to reach a place of safety quickly in the event of danger.
Lesley Shand QC, who appeared on behalf of the respondent submitted that the Lord Ordinary had not erred.
The only case pled against the defender was that there had only been one egress route and that had not been enough, as the judge had found as a matter of fact that there had been more than one such route.
The Lord Ordinary’s construction of section 53 of the 2005 Act was “correct” as was the reasoning which had led her to that construction.
On the case based on the duty imposed by regulation 40 of the CDM Regulations, it was argued that no evidence had been led by the pursuer to support a breach of the relevant provision.
In relation to the cross-appeal, it was submitted that psychiatric injury unaccompanied by physical injury is not within the ambit of section 53 of the 2005 Act and accordingly the provision does not afford the pursuer a remedy in respect of psychiatric injury suffered by reason of what would otherwise be a breach of the obligation imposed by the section.
Pursuer failed to prove case
However, the judges agreed that the appeal should be refused.
In his written opinion Lord Brodie said: “The defender pled a case that it had done what was reasonably practicable to do in discharge of its section 53(1) duty. It led evidence in support of that case which was accepted by the Lord Ordinary…In my opinion the pursuer has failed to identify any fire safety measure which was not in place and which, had it been in place, would have prevented the pursuer suffering the harm in respect of which he sues.
“Moreover, at the time of what the pursuer describes as his accident, the Lord Ordinary’s (perhaps surprising) assessment was that the risk of fire was not foreseeable to the defender. Accordingly, the defender has discharged the onus upon it to show that it did what was reasonably practicable. The pursuer’s case of breach of section 53(1) fails.”
He also held that there was “no reverse onus imposed by regulation 40”.
The judge added: “It is therefore for the pursuer to plead and prove what it was about the routes and exits from the Absorber which was not sufficient or not suitable…The pursuer’s contention (and only contention) was that there was only one exit and one exit was not sufficient.
“As explained at paragraphs  to  of her Opinion, having considered the pursuer’s case based on Regulation 40 the Lord Ordinary rejected it, the short point being that she found on the evidence that three routes were provided, rather than one. Having found that its factual basis had not been established, the Lord Ordinary was bound to reject the Regulation 40 case, as would I.”