Reclaiming Motion By Melville Dow Against Amec Group Limited

CourtCourt of Session
JudgeLord Glennie,Lord Drummond Young,Lord Brodie
Neutral Citation[2017] CSIH 75
Published date28 November 2017
Date28 November 2017
Docket NumberPD2285/11
[2017] CSIH 75
Lord Brodie
Lord Drummond Young
Lord Glennie
in the reclaiming motion
Pursuer and reclaimer
Defenders and respondents
Pursuer: Di Rollo QC and Blessing; Thompsons
Defender: Shand QC and McConnell; Morton Fraser LLP
28 November 2017
[1] In this action, to which the provisions of Chapter 43 of the Rules of Court apply, the
pursuer sues his former employer for damages for personal injury sustained by him and caused
by what he characterises as an accident which occurred on 23 March 2009 while the pursuer was
working in the course of his employment as a labourer with the defender on a building known as
Absorber Unit 3 (“the Absorber”) at Longannet Power Station, Alloa. The pursuer’s case
concerns an alleged failure on the part of the defender to ensure the safety of the pursuer in
respect of harm caused by fire. Although other provisions are pled, what the pursuer now relies
on is the breach by the defender of the 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 (the “CDM Regulations”).
[2] As at 23 March 2009 the Absorber was still under construction, albeit very close to
completion. The defender was the principal contractor for the construction project.
[3] The pursuer avers that at the relevant time he was working on what he describes in his
pleadings as “the roof” of the Absorber when he became aware that a fire had broken out,
generating thick black smoke. Despite attempting to do so the pursuer was unable to make his
way to ground level. He avers (in statement 4 of the statement of claim, reproduced at page 6E of
the Reclaiming Print):
“Prior to the fire there had been exits at a number of sides to the building. At the time of
the fire the only way to exit the roof was to use stairs at the east side of the building. It
was impossible to use those stairs to exit the roof due to the smoke and fire.”
[4] The pursuer became agitated and afraid. He became concerned that the building would
explode. He thought that he would die. After a short time in this situation (less than
13 minutes), rescue personnel reached the pursuer. They provided him with breathing
apparatus. They offered him the option of following them through the building to ground level
or of being taken off on the platform of an extendable mechanical arm (a “cherry picker”). He
chose the latter option.
[5] The pursuer did not suffer any physical injury during or as a result of the events of
23 March 2009. However, he avers that as a result of his experience he developed chronic Post
Traumatic Stress Disorder (“PTSD”) and associated pervasive depressive symptoms.
The Decisions Reclaimed Against
[6] The Lord Ordinary heard proof over eleven days. She heard submissions over a further
four days.
[7] The Lord Ordinary’s discussion of damages in what is a long and detailed opinion,
reflecting what has the appearance of having been a closely contested litigation, is brief
(paras [70], [71], [273] to [277]) and consequently lacking any very precise determination of causal
relationships; the Lord Ordinary simply explains that she had no hesitation in accepting 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.
[8] 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. On 16 December 2016 the Lord Ordinary assoilzied the defender.
[9] Before the Lord Ordinary the defender had argued that, in the event of breach of the
consequent obligations, the statutory provisions did not impose any liability in respect of pure
psychiatric injury (ie psychiatric injury with no associated physical injury). Although she
recorded the written submissions of parties on the question as to whether the scope of the
statutory provisions extended to pure psychiatric injury by attaching them as appendices to her
opinion, the Lord Ordinary did not make any determination on them beyond setting out some
brief observations at paragraph [280] of her Opinion.
[10] The pursuer now reclaims 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. The defender cross-appeals on
the Lord Ordinary’s failure to hold that even had the defender been in breach of either of the

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