Dow v Amec Group Ltd

JurisdictionScotland
CourtCourt of Session (Inner House)
JudgeLady Wolffe
Judgment Date28 November 2017
Neutral Citation[2017] CSIH 75
Docket NumberNo 16
Date28 November 2017

[2017] CSIH 75

Extra Division

Lady Wolffe

No 16
Dow
and
Amec Group Ltd
Cases referred to:

Alcock v Chief Constable, South Yorkshire Police [1992] 1 AC 310; [1991] 3 WLR 1057; [1991] 4 All ER 907; [1992] PIQR P1

Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] ICR 719; [2008] IRLR 440; [2008] PIQR P10

Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 WLR 1003; [2011] 4 All ER 223; [2011] ICR 523; [2011] PIQR P14

Black v Fife Coal Co Ltd 1912 SC (HL) 33; 1 SLT 20; [1912] AC 149

Bourhill v Young 1942 SC (HL) 78; 1943 SLT 105; [1943] AC 92; [1942] 2 All ER 396

Brown v JohnWatson Ltd 1914 SC (HL) 44; 1914 1 SLT 406; [1915] AC 1

Cairns v Northern Lighthouse Board [2013] CSOH 22; 2013 SLT 645

Campbell v North Lanarkshire Council 2000 SCLR 373

Donaldson v Hays Distribution Services Ltd [2005] CSIH 48; 2005 1 SC 523

Dulieu v White & Sons [1901] 2 KB 669

Gibson v British Insulated Callender Construction Co Ltd 1973 SC (HL) 15; 1973 SLT 2

Gillies v Glynwed Foundries Ltd 1977 SLT 97

Gorris v Scott (1874) LR 9 Ex 125

Groves v LordWimborne [1898] 2 QB 402

Hall v City of Edinburgh Council 1999 SLT 744; 1999 Rep LR 26

Hambrook v Stokes Bros [1925] 1 KB 141

Hunter v British Coal Corp [1999] QB 140; [1998] 3 WLR 685; [1998] 2 All ER 97; [1999] ICR 72; (1998) 42 BMLR 1

Jenkins v Allied Ironfounders Ltd 1970 SC (HL) 37; 1970 SLT 46; [1970] 1 WLR 304; [1969] 3 All ER 1609; 8 KIR 801

Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SC (UKSC) 59; 2016 SLT 209; 2016 SCLR 203; [2016] 1 WLR 597; [2016] ICR 325; [2016] PIQR P9; 149 BMLR 17

McFarlane v Wilkinson; Hegarty v EE Caledonia Ltd[1997] 2 Lloyd's Rep 259; [1997] PNLR 578

McGowan v W & JR Watson Ltd [2006] CSIH 62; 2007 SC 272; 2007 SLT 169; 2007 SCLR 147; 2007 Rep LR 18

McLoughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410; [1982] 2 WLR 982; [1982] 2 All ER 298

Mains v Uniroyal Englebert Tyres Ltd (No 1) 1995 SC 518; 1995 SLT 1115; 1995 SCLR 819; [1995] IRLR 544

Nimmo v Alexander Cowan & Sons Ltd 1967 SC (HL) 79; 1967 SLT 277; [1968] AC 107; [1967] 3 WLR 1169; [1967] 3 All ER 187; 3 KIR 277

Page v Smith [1996] AC 155; [1995] 2 WLR 644; [1995] 2 All ER 736; [1995] 2 Lloyd's Rep 95; [1995] RTR 210; [1995] PIQR P329

R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73; [2009] 1 WLR 1; [2009] 2 All ER 645; [2009] ICR 263

R v Porter [2008] EWCACrim 1271; [2008] ICR 1259; [2008] 22 EG 168 (CS)

Robb v Salamis (M & I) Ltd [2006] UKHL 56; 2007 SC (HL) 71; 2007 SLT 158; 2007 SCLR 176; [2007] 2 All ER 97; [2007] ICR 175

Rothwell v Chemical and Insulating Co Ltd sub nom Grieves v FT Everard & Sons Ltd[2007] UKHL 39; [2008] 1 AC 281; [2007] 3 WLR 876; [2007] 4 All ER 1047; [2007] ICR 1745; [2008] PIQR P6; [2008] LS Law Medical 1; 99 BMLR 139

Simmons v British Steel plc [2004] UKHL 20; 2004 SC (HL) 94; 2004 SLT 595; 2004 SCLR 920; [2004] ICR 585; [2004] PIQR P33

Wallace v Kennedy (1908) 16 SLT 485

Weir v Robertson Group (Construction) Ltd 2006 Rep LR 114; 2006 GWD 25–575

White v Chief Constable, South Yorkshire Police [1999] 2 AC 455; [1998] 3 WLR 1509; [1999] 1 All ER 1; [1999] ICR 216; [1999] IRLR 110; 45 BMLR 1

Young v Charles Church (Southern) Ltd (1998) 39 BMLR 146

Textbooks etc referred to:

Clerk, JF, and Lindsell, WHB, Torts (21st Jones ed, Sweet and Maxwell, London, 2014), para 9.53

Health and Safety Executive, Fire Safety in Construction (HSG 168) (2nd ed, TSO, Norwich, 2010) (Online: http://www.hse.gov.uk/pubns/books/hsg168.htm (25 April 2018))

Law Commission, Liability for Psychiatric Illness: A Consultation Paper (Law Com no 137, 1995) (Online: https://www.lawcom.gov.uk/project/liability-forpsychiatric-illness/#liability-for-psychiatric-illness (25 April 2018))

Reparation — Personal injury — Employer's liability — Pursuer psychiatrically injured by workplace fire — Whether defender failed to ensure the safety of the pursuer in respect of harm caused by workplace fire — Whether defender took all reasonably practicable steps to ensure the pursuer's safety in respect of harm caused by workplace fire — Whether liability arises from failure to carry out and review workplace fire assessments — Whether duty to prevent purely psychiatric injury absent physical injury — Fire (Scotland) Act 2005 (asp 5), sec 53

Reparation — Personal injury — Breach of statutory duty — Pursuer psychiatrically injured by workplace fire — Whether one emergency exit sufficient — Whether emergency exit suitable — Whether duty to prevent purely psychiatric injury absent physical injury — Construction (Design and Management) Regulations2007 (SI 2007/320)

Melville Dow raised an action for reparation in the Court of Session for psychiatric injury suffered by him as a consequence of a fire at his workplace. After sundry procedure the action called before the Lord Ordinary (Wolffe) over 11 days, between 9 and 25 February 2016, for proof, with additional legal submissions on 22 and 23 March, and 3 and 16 June 2016. At advising, on 16 December 2016, the Lord Ordinary assoilzied the defender ([2016] CSOH 176). The pursuer reclaimed and the defender cross-appealed.

Section 53 of the Fire (Scotland) Act 2005 (asp 5) (‘the 2005 Act’) provides, “(1) Each employer shall ensure, so far as is reasonably practicable, the safety of the employer's employees in respect of harm caused by fire in the workplace. (2) Each employer shall– (a) carry out an assessment of the workplace for the purpose of identifying any risks to the safety of the employer's employees in respect of harm caused by fire in the workplace; (b) take in relation to the workplace such of the fire safety measures as are necessary to enable the employer to comply with the duty imposed by subsection (1). (3) Where under subsection (2)(a) an employer carries out an assessment, the employer shall– (a) in accordance with regulations under section 57, review the assessment; and (b) take in relation to the workplace such of the fire safety measures as are necessary to enable the employer to comply with the duty imposed by subsection (1).”

Regulation 40 of the Construction (Design and Management) Regulations 2007 (SI 2007/320) (‘the CDM Regulations’) provided, “(1) Where necessary in the interests of the health and safety of any person on a construction site, a sufficient number of suitable emergency routes and exits shall be provided to enable any person to reach a place of safety quickly in the event of danger. (2) An emergency route or exit provided pursuant to paragraph (1) shall lead as directly as possible to an identified safe area.”

Chapter 43 of the Rules of the Court of Session (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69))) applies to personal injuries actions. Rule 43.2.(1)(a) provides that the summons shall have annexed a “a brief statement containing– (a) averments … relating only to those facts necessary to establish the claim”.

The pursuer raised an action for reparation against the defender for psychiatric injury he suffered at work. The pursuer was working as a labourer at a power station, part of which was under construction. He was working on the roof when fire broke out. The pursuer was trapped there for a time by smoke and thought he was going to die. He did not suffer any physical injury. He averred that he suffered from shock, leading to him suffering post-traumatic stress disorder and associated pervasive depressive symptoms. After proof the Lord Ordinary held that the pursuer had failed to prove a breach of the obligations under sec 53 of the 2005 Act, reg 40 of the CDM Regulations, or any other provisions pled. In respect of sec 53 of the 2005 Act, the Lord Ordinary held that there was no prima facie breach made out by the pursuer. The pursuer reclaimed. The defender cross-appealed against the Lord Ordinary's holding that, had the defender been in breach of the statutory provisions, the pursuer would have been entitled to recover damages in respect of psychiatric harm absent physical injury.

The pursuer argued that: (1) the Lord Ordinary had erred in limiting consideration of the reasonable practicability defence to the positive averment of the pursuer anent the number of routes of egress; (2) the reasonably practicable defence in terms of the 2005 Act could not be discharged without a suitable and sufficient risk assessment addressing the fire safety measures; (3) the Lord Ordinary had erred in failing to find a prima facie breach of sec 53(1) of the Act by the defender having failed to ensure the safety of the pursuer in respect of the harm caused by fire; (4) the defender had not taken all reasonably practicable steps to ensure the safety of the pursuer in respect of the harm caused by fire; and (5) the duty imposed by reg 40 of the CDM Regulations was absolute and was breached by the pursuer being unable to reach a place of safety quickly.

The respondent argued that: (1) neither the 2005 Act nor the CDM Regulations allowed for claims without physical injury; (2) the Lord Ordinary was correct that there was no prima facie breach of sec 53 of the Act; (3) the only positive case pled by the pursuer related to there being one route of egress and, there being a finding that there was more than one route of egress, the Lord Ordinary had been correct to reject the pursuer's claim under both the 2005 Act and the CDM Regulations; and (4) the Lord Ordinary had not erred in holding that the defender had discharged the onus of showing that it was not reasonably practicable for it to do more than it did in respect of fire safety and egress.

Held that (1) the pursuer had demonstrated a prima facie breach of sec 53(1) of the 2005 Act (paras 99–101, 129, 176, 177); (2) the defender had satisfied the reasonable practicability test (paras 105–110, 130–138, 184–190); (3) any breaches of sec 53(2) and (3) had not caused the pursuer's injury (paras 103, 104, 111, 140, 195, 196); (4) there was no breach of reg 40 of the CDM Regulations in...

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