Md Against Amec Group Limited
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2016] CSOH 176 |
| Court | Court of Session |
| Published date | 19 December 2016 |
| Year | 2016 |
| Date | 16 December 2016 |
| Docket Number | PD2285/11 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 176
PD2285/11
OPINION OF LADY WOLFFE
In the cause
MD
Pursuer;
against
AMEC GROUP LIMITED
Defenders:
Pursuer: Di Rollo QC et Blessing; Thompsons
Defender: Shand QC et McConnell; Morton Fraser LLP
16 December 2016
Introduction
[1] In this action for personal injury the pursuer, MD, sues his former employers, AMEC Group Limited, for chronic Post Traumatic Stress Disorder (“PTSD”) said to have been suffered as a result, and in the aftermath, of a fire on Absorber Unit 3 (“Absorber 3” or “the Absorber” as the context requires) at the Longannet Power Station on 23 March 2009. The pursuer did not sustain any physical injury.
[2] On the pleadings, the pursuer’s positive case is narrowly cast. The only factual averments going to fault assert that there was only one exit from the roof of the Absorber at the material time. As will become clear, at the proof the pursuer sought to lead evidence in support of a number of additional grounds of fault and for which, the defenders contended, there was no record.
[3] The pursuer, aged 59 at the date of the proof, had worked as a labourer since about 1972. He had worked mostly on construction sites or in dockyards in Fife. He has previously worked for AMEC on several occasions. Prior to the date of the fire on 23 March 2009, the pursuer had been working for AMEC on the Longannet Power Station site continuously since about 2006 as a labourer. The pursuer’s recollection is that he commenced on site in June 2006.
[4] The pursuer’s main job with AMEC had been to work with the safety team and on environmental matters. This was at ground level. He assisted in the labelling of skips used for disposal of certain forms of materials (eg wood, metal etc) and he would clean up oil spills on site. He was also a labourer and assisted others as “mate”, a role he was engaged in on the day of the fire.
Absorber Unit 3
[5] The pursuer’s case on record concerns an asserted failure on the part of the defenders to have sufficient means of egress from the Absorber structure on which the pursuer was working on the afternoon of 23 March 2009. In order to understand where the pursuer was working and what means of egress were available to him, it is first necessary to explain the structure on which the pursuer and others were working on the day of the fire.
[6] As a consequence of the fire, Absorber number 3 was demolished and rebuilt. A considerable amount of time was taken up at the proof with evidence, and objections to evidence, to try to establish the features of Absorber number 3 as they were at the material time, and in particular, the fixed and any temporary horizontal walkways, scaffolding and the point or (if more than one) points of vertical access on and off the structure. There were in excess of twenty external photographs taken of the structure at some point during the fire on 23 March 2009. Only three of these were subject to agreement in the joint minute. In addition, there were some isometric drawings (to which objection was taken), and one or two more stylised overhead figures (to which objection was also taken).
[7] The efficient or clear presentation of the evidence on this significant aspect of the case was bedevilled by the following:
(i) the lack of a key to the colours used for figures 6 and 6A of the Report of Mr Sylvester-Evans (No 7/62 of process) providing an overhead view of certain features of the structure;
(ii) the failure to provide the opposing party with colour copies of those figures;
(iii) the failure to provide the opposing party with copies of those isometric drawings containing an architectural legend (with descriptions, scale and other data), (Nos 7/19 and 7/22 of process); and
(iv) the failure to provide any drawing or plan with simple marked reference points to assist the examiner in posing concise questions, or to assist the witness or the court in understanding the questions posed, about the physical features of what is a complex structure. An attempt to provide the latter was finally lodged, at the behest of the court, as 7/68 of process. Unfortunately, the pursuer did not have the benefit of this for the purpose of his evidence.
Absorber Unit 3: Its Purpose
[8] As reliance is placed on features of the Absorber to explain why certain desiderated fire precaution steps or systems would not be reasonably practicable, it is necessary to describe its proposed operation and, so far as possible on the evidence available, its external physical features at the material time.
[9] Absorber 3 was one of three such Absorber units, described as flue gas desulpherisation units (or FGDs), being constructed at the Longannet Power Station. In brief, the purpose of an Absorber was to remove or reduce the amount of sulphur in the gas emissions from Longannet Power Station, as part of an initiative to generate cleaner or, at least, less pollutant energy. The process relied on the chemical reaction of combining alkaline seawater with acidic flue gases with the intended result of producing pH neutral emissions.
[10] The means by which this was done involved the construction of a large concrete box structure in the immediate vicinity, just to the south, of the Longannet Power Station. In operation this would be sealed and was referred to in evidence as “the chamber”. As designed, there was only one access door to the chamber, on the south face, and situated relatively low down on that face. The Absorber was comprised essentially of this chamber, together with the external features on that structure.
[11] Gas emissions from the Longannet Power Station were pumped into the sealed chamber of the Absorber, through an inlet duct, which fed the gases in near the bottom of the concrete part of the chamber. The gases would then rise up and, once treated, would be removed via the outlet duct. The flue gasses would then be directed to the chimney, which was west of the Absorber structure. Meantime, large volumes of seawater were pumped to the top of the Absorber. Through a series of pipes with branched arms or splays, the seawater would be sprayed onto what was described as “packing material” to wet it. The packing material consisted of polypropylene, a flammable material. The polypropylene packing material was structured in such a way so as to maximise the surface area which could be wetted with the seawater. As the gases rose up through this wet material, the desired chemical reaction would take place. The seawater flowing down through this packing material would then be pumped away. In normal operation, the chamber would effectively be a sealed concrete box filled with sea water and to which no worker would require to have internal access.
[12] Situated above the concrete chamber of the Absorber was the gas heat exchanger (“GGH”). The GGH was designed to extract heat from the flue gases as they entered the Absorber. It was cylindrical structure of about 18 metres in diameter and, when in operation, rotated on a central shaft. The circular cover of this, referred to as the flange, was situated in the sloping roof (described further below).
[13] At all material times, the movements of the pursuer and others was on the external parts of the Absorber, that is, the parts exposed to a greater or lesser extent to the outside air. I turn to describe those external features in more detail.
Absorber Unit 3: External Features in Outline
[14] The Absorber was, externally, a complex structure with a series of fixed horizontal walkways circumnavigating most of the structure. In addition, at the material time, there was a great deal of scaffolding around some of the Absorber’s external faces. The two large inlet and outlet ducts are best described as each forming a rounded “M” at the point where they surmounted the concrete chamber of the Absorber, oriented on a north-south axis, and with the south ends of each fixed to the top of the large concrete box structure that comprised the enclosed chamber of the Absorber. The top surface of the two ducts was higher than 29 metres. The two ducts were bisected on an east-west axis by expansion joists. The outlet duct was to the west of the inlet duct. The inlet and outlet ducts were not simple “M” structures, running on north-south axis, as I have already described. Each duct also had a section running perpendicular to the “M”, with the east-west running section of the outlet duct running beyond the Absorber, to the west, into the chimney. The east-west portion of the inlet duct protruded beyond the Absorber at the other side, at its north-east most corner. This part of the inlet duct is only relevant as, on the evidence of Mr Sylvester-Evans, if one reached the north side of that part of the inlet duct, the solid feature of that duct afforded sufficient protection from the fire that that area could be regarded as a place of safety (for fire safety purposes). This is the area shown between letters G and H of No 7/68.
Absorber Unit 3: The North Passageway between the Inlet and Outlet Ducts
[15] The structure of the inlet and outlet ducts representing two “M”s on a north-south axis were parallel to each other, but not abutting, so that, at a certain level, there was a walkway between the two ducts, again running on a north-south axis, heading to the north away from the Absorber. This walkway is signified by the yellow passageway between letters “E” and “F” on 7/68. Apart from the sloping roof I will describe in a moment, the only accessible parts of the Absorber at any height was by a series of external horizontal walkways fitted to the structure of the Absorber at various points. I describe these in more detail below.
Absorber Unit 3: The Sloping Roof
[16] The west part of Absorber 3 had a gently sloping roof, sloping down from the central part of the Absorber to the western face of the Absorber unit. The purpose of the slope was to facilitate the direction of the gas...
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