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Friday, February 2nd, 2018

Melville Dow v Amec Group Ltd [2017] CSIH 75

Lesley Shand QC of Compass Chambers appeared for the defender/respondent in this Reclaiming Motion heard by the Extra Division of the Inner House.

The pursuer sued his former employers after developing post-traumatic stress disorder following a fire at a power station from which he had to be rescued in March 2009.  He appealed the decision of the Lord Ordinary to refuse his claim.


Facts

The pursuer was working on the roof of a building, known as ‘The Absorber’ when he became aware that a fire had broken out.  The pursuer alleged that prior to the fire there were exits located at a number of sides to the building, but at the time of the fire the only way to exit the roof was to use stairs at the east side of the building and that it was not possible to use those stairs to exit the roof due to the fire.  The pursuer became agitated and afraid, as he was concerned the building would explode.

The pursuer did not suffer any physical injury.  He claimed that as a result of the incident he developed chronic PTSD and associated “depressive symptoms”.


First Instance

The pursuer alleged breaches by the defender of obligations imposed by: section 53 of the Fire (Scotland) Act 2005; and regulation 40 of the Construction (Design and Management) Regulations 2007 (CDM Regulations).

The Lord Ordinary held that the pursuer had failed to prove a breach of the obligations imposed upon the defender by section 53 of the 2005 Act, regulation 40 of the CDM Regulations or any of the other provisions pled and so assoilzied the defender.


Inner House

The pursuer reclaimed against the Lord Ordinary’s decision that on the facts 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.

For the pursuer/reclaimer it was submitted that the Lord Ordinary 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, that being the so, 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.  This amounted to a breach of s.53.

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.

For the defender/respondent it was submitted that the only case pled against the defender was that there had only been one egress route and that was insufficient.  The Lord Ordinary 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.


Decision

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……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”.  As such, “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 [260] to [268] 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.”

The reclaiming motion was refused.

The Opinion of Lord Brodie can be found here.

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