Daniel Rooney V. The Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2008] CSOH 111 |
| Court | Court of Session |
| Docket Number | A4540/01 |
| Published date | 05 August 2008 |
| Date | 05 August 2008 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 111 | |
| A4540/01 | OPINION OF LORD UIST in the cause DANIEL ROONEY Pursuer against THE ADVOCATE GENERAL FOR SCOTLAND Defender ________________ |
Pursuer: A Smith QC, E G Mackenzie; Digby Brown SSC
Defender: Clancy QC, Webster; Morton Fraser
5 August 2008
Introduction
[1] The pursuer, who was born on 30 July 1960, joined the Royal Air Force Fire Service on 8 November 1977. He spent approximately 14 years in that service and then switched to a job as a civilian fireman in the Ministry of Defence Fire Service. He did so in order that he would be guaranteed employment until the age of 60. In November 1998 he was employed as a leading firefighter at RAF Leuchars. He avers that he suffered injury in an accident in the course of his employment there on or about 26 November 1998.
[2] The averments made by the pursuer about the circumstances of the accident, as set out in condescendence 2, are as follows:
"On or about 26 November 1998 the pursuer was employed as a leading fire fighter by the Ministry of Defence ("the defenders") at RAF Leuchars. His duties included transferring equipment from one fire tender ("the first tender") to another fire tender ("the second tender"). Both tenders were Mark 9 tenders. No instructions were given by the defenders to their employees as to the system to be adopted for transferring equipment between tenders. The transfer of equipment from the first to the second tender took place at the same time as the water tanks of the second tender were being filled with water. There was no gauge on the second tender to indicate when the water tanks were full. The only way of knowing when the tanks were full was when water overflowed from them. As a result of said water filling operation the ground was covered with water. The pursuer required to transfer breathing apparatus from the first to the second tender. Said apparatus was situated in the rear cab of the first tender. The apparatus weighed approximately 13 kilograms. It was bulky. The pursuer stood on the foot plate of the first tender. Said foot plate was approximately one metre from the ground. It was wet. The soles of the pursuer's boots were wet. The pursuer reached into the cab and lifted the apparatus with both hands. As he was about to descend from the tender his foot slipped causing him to fall backwards and land heavily on his back. As a result of the accident he suffered the loss, injury and damage hereinafter condescended upon. The accident was reported to the defenders."
[3] He goes on to make averments about a new system introduced after the accident for the transfer of equipment between tenders by at least two fire fighters, separately from the filling of water tanks. In answer the defenders admit that the pursuer's duties included the transfer of equipment from one Mark 9 fire tender to another, that the pursuer was required to transfer breathing apparatus weighing approximately 13 kilograms from the rear of the cab of the first tender to the second tender, that he stood on the footplate of the first tender and that he fell. They aver that the apparatus was accessible from the foot plate, that there were handrails on either side of the door leading into the cab and that the pursuer could have kept hold of either handrail. The pursuer in riposte avers that it was not possible for him to reach the handrails, which were on the outside of the tender, while standing on the steps of the tender and that in any event the correct method of lifting the breathing apparatus was to hold both its handles, while doing which it was not possible for him to make use of any handholds.
[4] The accident is averred in condescendences 3, 4, 5 and 6 to have been caused by the negligence of the Ministry of Defence at common law and by their breaches of Regulations 5(1), 12(3) and 13(1) and (3) of the Workplace (Health, Safety and Welfare) Regulations 1992, Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 and Regulation 4(1) of the Manual Handling Operations Regulations 1992. In the closing submission for the pursuer the cases under Regulations 5(1) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 were abandoned.
The evidence about the accident
[5] The pursuer explained by way of background that fire cover was required on the ground for aircraft taking off or landing. RAF Leuchars had five fire tenders, two of which were probably of the same make and were double the height and breadth of a normal tender. (He later amended this description in cross-examination.) The pursuer was like a depute crew commander: he had his own crew of nine men and also took over a colleague's crew. Each tender carried its own water in its tank, which had to be as full as possible, as aircraft could crash anywhere.
[6] On 26 November 1998 he was working as a leading firefighter. He had Sub-Officer Mark Peters, who did a lot of the administrative work, as crew commander above him. He himself was working with a Mark 9 tender which was used day in and day out. He had to transfer breathing apparatus from one Mark 9 tender to another, which had been taken out of storage and had no kit. The whole crew, consisting of, he thought, 11 men, were working on the transfer. The breathing apparatus was stored immediately behind the front passenger seat as you went up the stairs on the near or left side of the tender. The first step was two or three feet from the ground and the second step another foot up. The breathing equipment, which was like a sub-aqua type of equipment with a mask attached by a hose, was on a ledge. It had two handles and a mask on top. It consisted of a base plate on the bottom, then the cylinder and the mask on top of the cylinder. It was a very delicate piece of life-saving equipment. It had to be carried level. He had been taught how to carry and wear it properly. The second tender was having water pumped into it. The water went in at full pressure and it was known that the tank was full only when it overflowed. The ground surface was made of concrete and was wet. The spindle was off the hydrant, which could not be turned off.
[7] There were handrails on the outside of the tender. He was going backwards at the time. If he were to turn round and go forward he would just fall down. His feet gave way from under him, he slipped and fell backwards onto the concrete because of the water. If he had had no breathing apparatus he could have held onto the handrails and walked down. He had carried out this procedure on hundreds of previous occasions. He fell from inside the cab but would be guessing what height he fell from. The breathing apparatus fell to his left side. Water was still flowing out of the tender onto the concrete. He heard someone shout "fireman down", something he had never heard before. He thought he was on the ground for 45 minutes. He tried to get up but couldn't because of agony and pain in his lower back. "They" dialled the medical centre direct instead of putting it through as an emergency. The ambulance came and took him on a back stretcher to Ninewells Hospital in Dundee, where he stayed overnight. He was x-rayed and no fractures were found. The next morning when the doctor came round he wanted home. He was taken home in the back of a Fire Service van and the journey was agony.
[8] In cross-examination the pursuer confirmed that equipment was being transferred from one Mark 9 tender to another. One of them had broken down. He had a good recollection. They were facing the runway but staggered. They were not parallel to each other. One was at an angle at the fire hydrant being filled up with water on the rear offside at the bottom of the vehicle, from which there was a pipe to the tank at the centre of the vehicle. The other tender was about two or three bays along. (He drew a diagram indicating vehicles A and B, 7/29 of process.) He was on the nearside of the tender which was not being filled up (B) and water from the other tender (A) was flowing across the surface. The internal step into tender B was about half the height of a chair in court and about two and a half feet wide. It was possible to stand on it with both feet. The Photographs 7/30 and 7/31 of process both showed a Mark 9 tender. In 7/31 the dimensions were given as height, 3.54 metres (11.48 feet) and length, 8.73 metres (28.6 feet). When he had said earlier that the tender was twice the height of a civilian fire tender he had been trying to do his best in giving an impression of the difference: a Mark 9 tender could be twice the height of some other fire service vehicles. He knew what he meant. He did not know he was coming to court to give exact measurements. He was saying that a civilian tender was a lot smaller than a mark 9 tender. It was unfair to say that his estimate of the size of a Mark 9 tender was part of a tendency on his part to exaggerate. He could not say exactly what height he fell from. In para 4.01 of the report of 24 September 2002 from Dr Colin Rodger, Consultant Psychiatrist (6/10 of process) it was stated that he "fell approximately 10 feet". He accepted he must have said that, but, given the height of the vehicle, there was no question that he fell 10 feet. He could not say if he had more recently told Dr Stone that he fell 10 to 12 feet. It was a traumatic part of his life and he got upset and agitated when he spoke about it. The accident had changed his whole life.
[9] The photograph 7/30 of process showed the nearside of the tender from which he fell. The door was a concertina door which had two vertical window panels and handrails on each side. The first step was shown below the door. He was not sure if it had a tread. He would have been up and down there thousands of times, including when it was wet. The other steps inside the vehicle were normal, conventional steps, and he would say they were treaded. He would class the footplate...
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