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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Davidson v. Lothian & Borders Fire Board [O630_5_97.html] ScotCS 97 [2002] ScotCS 145 (23rd May, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/145.html Cite as: [2002] ScotCS 145 |
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Davidson v. Lothian & Borders Fire Board [O630_5_97.html] ScotCS 97 [2002] ScotCS 145 (23rd May, 2002)
OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD DAWSON in the cause PATRICK DAVIDSON Pursuer; against LOTHIAN AND BORDERS FIRE BOARD Defenders:
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Pursuer: Lloyd, Thompsons
Defenders: Weir; City of Edinburgh Council
23 May 2002
1. The Background
2. The Incident
3. The Evidence on the Merits
"Pitching 135 ladder against tower when gust of wind caught the head of the ladder causing the ladder to swing away from the tower. Injury sustained while controlling the ladder. Weather conditions: steady drizzle with moderate gusting wind. Yard lights in use."
Although Mr Gray had not actually witnessed what happened to the pursuer, he did sign that form. He said that he did so after consulting everyone and satisfying himself that what was written was correct. He was happy with the description of the wind condition. The report was completed at the time.
4. Evidence Regarding Damages
He had further physiotherapy in 1996 up until his discharge in October of that year. No 10/4 of process contained various documents relating to the physiotherapy which he received. He accepted that he had failed to attend on one occasion a six week course which had been prescribed for him but could give no reason why he didn't go. He claimed that the physiotherapy he received at Penrith gave him considerable benefit and it was that that enabled him to go back to work. He claimed at first that he had been given a regime of exercises after that course and that he had adhered to it. However, from No 10/4 of process a physiotherapy discharge on 1 December 1997 it appeared that he was doing the exercises prescribed for him at Penrith "infrequently". He also accepted that he was involved in a road traffic accident in 1996 when he suffered soft tissue injury to his lower back. He accepted that he did not tell Mr Court Brown about that in June of 1996 and could give no answer to the question as to why he had failed to do so. It was suggested to him that he had been trying to conceal such a matter for purposes of the present litigation. He was very evasive in his answers in relation to this passage of cross-examination. It was further put to him that in June 1997 he saw a Dr McBurnie at the Princess Margaret Rose Hospital. He accepted that, but claimed that she did not examine him. It was further put that she found nothing wrong with him. Reference was made to another document in 10/4 of process dated 13 June 1997 in which Dr McBurnie said that he complained of mechanical low back pain but that no cause could be found. It was put to the pursuer that he was fit for work by September 1995. He denied that. It was further put to him that if he had followed advice, he could have remained at work but he denied that also. It was claimed and put to him that he was at least fit by March 1996 but that the road traffic accident set him back. He denied that also. He agreed that as far as depression is concerned that he was prescribed a certain drug by his general practitioner in about August 1996. He accepted that he did not take it as it gave him headaches. He had by then began to drink heavily. He was referred to St John's Hospital for psychiatric treatment. He was prescribed a different drug but accepted that he was only taking small amounts of that drug at his own choice. He also accepted that by March 1997 he was receiving advice regarding his alcohol intake but that he did not take the advice. He also accepted he was taking the drugs prescribed for him intermittently. In general he did not take the advice that he was given. He also accepted that during 1997 he failed to attend various appointments but could give no good reason for that. His last such failure was on 27 June 1997 when he was discharged from further psychiatric care. In general terms he accepted that he failed to take certain drugs as he preferred to take alcohol instead. He had been told that alcohol was a depressant but he did not take that advice nor did he take the drugs that were given for him. He did not take an employment course that was recommended to him. He did not keep certain appointments.
"There seems no doubt that Mr Davidson damaged his lumbar spine as a result of the incident on 19 January 1995. He has been investigated and there was certainly no evidence of a slipped disk. It would appear therefore that the most likely diagnosis is that Mr Davidson had a flare up of otherwise quiescent minor degenerative changes in his lumbar spine, these mainly involving facet joints."
He was able to express that opinion of exacerbation of the degenerative changes rather than saying for example that the back pain was simply a straightforward consequence of the accident from the very nature of the medical history and his own examination of the patient. That was so even although he was not aware of any complaints of back pain and made to any doctor prior to the accident. There was no inconsistency there since the degenerative changes may have been prior to the accident quiescent and given rise to no symptoms of pain. He was of a clear opinion that the accident had caused an exacerbation of pre-existing degenerative changes in the spine. In summary, Mr Court-Brown in his report said that he believed that Mr Davidson had had a back injury as a result of the January 1995 incident. It was likely that this exacerbated minor degenerative changes in his lumbar spine and it was also likely that had he not had the accident he would not have presented with back pain for many years to come. The prognosis was good but he would probably get episodic discomfort in the future. He was not surprised, bearing in mind the two occupations which the pursuer had and that he had in fact been off work from January 1995 to June 1996 or so.
"It is very difficult to quantify the extent of any patient's pain and this is particularly so if the patient is depressed and abusing alcohol. Given these circumstances it is highly unlikely that any form of treatment is going to be all that satisfactory and I believe therefore that the prognosis is very poor indeed. I think it is likely that Mr Davidson will continue to complain of low back pain and I suspect that he will be unable to work to carry out his normal activities. I must emphasise that the depression and the alcohol abuse will also prevent him working and it is quite clear that the back pain, the depression and the alcohol abuse are all working together to give him a poor prognosis".
Mr Court-Brown went on to express the view that had the pursuer not suffered an injury in January 1995 he would have thought that given his history of having some minor back pain before that this would slowly have worsened, but it wouldn't have been anything like as quickly as it did after the injury he had. Mr Court-Brown would have thought that on balance he would probably have taken into his mid-forties perhaps late forties before he was complaining of significant back pain.
"This man gives a history of moderately severe depression which has arisen on the basis of a back injury on 19 January 1995. There is no previous history of psychiatric illness prior to the accident. From his report his life has been significantly altered for the worse. Since the accident he has had to give up his chosen career as a fireman and baker and over the past five months he has been able to return to work as a representative, albeit with some restriction on his activities because of his inability to sit in a car for a prolonged period of time. Since recommencing work he had been moderating his alcohol intake but it is likely that he is in the early stages of alcohol dependence which has been exacerbated by his long period of unemployment between 19 January 1995 and November 1998."
In the final heading "Prognosis" Dr Stewart says:
"This man with no previous history of psychiatric illness has been considerably disabled from a psychiatric view by reason of his moderately severe depressive reaction. In my opinion he should respond to psychiatric treatment and in particular ongoing antidepressant therapy. There is some evidence indeed that the outlook from a psychiatric viewpoint is improving in that he appeared determined to make a success of his present employment despite the continuing back pain. It is likely too that there will be further improvement in his mental state with moderation of his alcohol intake."
In his second report dated 25 October 1999 (No 43/4 of process) Dr Stewart expressed the following opinion:
"Mr Davidson presents with a mixed picture of some gains particularly in his area of employment and reduction in alcohol intake. From his account his back is slightly less painful. His level of depression has increased slightly, probably as a result of the fact that he discontinued his antidepressant drug four months ago. He is still having difficulty coming to terms with the fact that he is no longer able to function as a fireman or even be employed as one because of his physical disability."
Dr Stewart was also referred to No 43/1 of process, a psychological report dated April 1998. He had seen that previously and agreed with a diagnosis expressed therein.
"All in all it would be my opinion that against the background of previous back problems which had been associated with left nerve root pain that during the course of the relevant accident Mr Davidson sustained soft tissue injury to his lumbar spinal musculature and possibly minor traction lesion to lumber or sacral nerve. I would have anticipated that any soft tissue muscle injury would have resolved within five to six months of the relevant incident at most, any nerve traction symptoms would have persisted for twelve months or so. In my opinion no sequelae of the relevant accident should have precluded Mr Davidson if he was so motivated from returning to his previous employment by April 1996, his road traffic accident that month causing further soft tissue injury to lower back may have been caused delay in his being able to return to employment until August 1996".
"While I do not have enough evidence about his psychological functioning in his early years, I gained an impression that he has suffered episodic low mood for many years. It would seem that he has used sport in its many forms as a focus of his attention as a way of keeping fit for an occupation which he loved (i.e. retained firefighting) and as a focus for his social life. Immediately after the incident in January 1995 all of these 'coping mechanisms' which in my opinion allowed him to function while experiencing a mild to moderate dysthymic condition were removed resulting initially in high levels of anxiety but which he self-medicated using grossly excessive alcohol and eventually leading on to a severe major depressive disorder. Dysthymia is a chronic depression of mood lasting at least several years which is not sufficiently severe or in which individual episodes are not sufficiently prolonged to justify diagnosis of severe, moderate or mild recurrent depressive disorder. Mr Davidson's conscientiousness with regard to his work and his extreme orderliness allied to very categorical 'black and white' thinking has led him to a sense of injustice against the fire department and to some extent a sense of alienation from those that are close to him. While in some sense the minor accident that occurred in January 1995 could be seen as a precursor to all these events, the various factors that had produced the present state are of long-standing related to a rather traumatic early childhood.
While many attempts have been made to treat this man's severe depression, his failure to comply in taking medication on a regular basis has meant that there has been no real trial of effective medication. It is also my firm opinion that because of this man's combination of an obsessional and dysthymic personality he would benefit greatly from cognitive therapy from a clinical psychologist if this could be arranged. He shows common patterns of thought which are known to sustain depression and which will be amenable to change with structured advice."
Submissions on Liability
(a) Pursuer
(i) eliminate use of the 13.5 metre ladder;
(ii) alternatively instruct that the ladder be pitched only to the second floor of the tower;
(iii) in any event, instruct the use of additional personnel on the ladder props; or
(iv) alternatively wait until the wind had died down before conducting the drill.
As Mr Lloyd put it, the focus of the pursuer's evidence was really on number (ii), in his submission, a breach of that duty had been established, namely, a failure to instruct that the ladder be pitched only to the second floor of the tower as opposed to the third.
(b) Defenders
"From about midday on said date weather conditions had become increasingly windy, with strong gusts of wind, and changes in wind direction. In the period from 1700 to 2000 hours wind speed was at its highest with the strongest gusts."
Mr Weir agreed with counsel for the pursuer that the balance of evidence established that the head of the ladder was moved by a gust of wind. He then described the various passages of evidence which established that fact. He submitted that the court had before it no competent evidence that the head of the ladder moved for any reason other than a gust of wind. In this respect the defenders were justified in taking timeous objection to the evidence which suggested an alternative cause for the head of the ladder to move. Mr Weir then referred to the various passages in the evidence at which this objection was taken and renewed. Mr Weir further submitted that in all the circumstances the general question to be asked was whether Skorupa was negligent in instructing and proceeding with the ladder drill as he did. In answering that question Mr Weir suggested that the following passages of evidence were pertinent:
(1) The evidence of Senior Divisional Officer Torrie, who was the defenders' head of training, in which Mr Torrie looked upon the decision of a training officer to undertake a particular drill in a particular set of weather conditions as a matter of judgement for that officer based on the training officer's experience of handling a ladder himself and observing crews handling ladders.
(2) The evidence of Stanley Wyners to the effect that what constituted "adverse weather conditions" for the purpose of the Fire Service Drill Book was again a matter of judgement.
(3) The evidence of the weather conditions on the night and at the time of the accident. The testimony of Richard Tavony, given by reference to his report No.12/8 of process showed that the averment of the pursuer at p.8B referred to above was, and is, ill-founded. The wind-speed was not at its highest between 1700 and 2000 hours. On the contrary the evidence disclosed that by the time of the accident (which for the purposes of Mr Weir's submissions was accepted as about 1930 hours) the wind had considerably moderated and was no more than light to moderate in strength. If someone were travelling from Edinburgh to Linlithgow between 1800 and 1900 they would have found it noticeably windy, as Mr Skorupa did. Between 1900 and 2000 the eye of the depression would have passed over Linlithgow. This did result in a steady decrease in the wind from 1800 to between 2000 and 2100. In cross-examination Mr Tavony agreed that the wind was moderate and the highest gust at Turnhouse at about 1930 was about 20 knots and that it was not abnormally windy at all. Reference was also made to Production 12/8(a).
(4) The evidence of Skorupa, supported by Mr Tavony, to the effect that by the time he reached Linlithgow the wind had decreased to such an extent that in the exercise of his judgement Skorupa decided to proceed with the ladder drill. Reference was also made to Production 12/9. Skorupa was himself an officer of considerable experience having 34 years service. This was recognised by Mr Torrie in his evidence.
(5) The absence of any evidence that any other fire-fighters, including Station Officer Gray, had any reservations about performing the drill.
(6) The evidence of Skorupa regarding the provision of an experienced crew and additional experienced personnel for the drill. In this context Mr Weir also referred to the evidence of Station Officer Gray.
(7) The briefing provided before the drill commenced, the subsequent staged demonstration and the involvement of fire-fighter Scott in this drill.
(8) The evidence of Skorupa that he continued to keep an eye on the weather for deterioration.
(9) The evidence of John Sharp, senior instructor at the Fire Service Training School in Gullane (i) that the decision whether to proceed with a drill is one for the discretion of the individual squad instructor who undertakes a dynamic risk assessment at the commencement of the exercise and throughout its duration so that if squad instructors feel that it is too windy to carry out a drill, then ladder drills would not be done; and (ii) that at the training school a full team of recruits train on the 13.5 metre ladder.
(10) The evidence of Mr Torrie that the recruits have to be exposed to certain risks in their training and the evidence to similar effect from Skorupa. Reference was also made to Production 12/7 of process ("Training for Hazardous Occupations").
Mr Weir submitted that in the light of the foregoing evidence the risk inherent in actual or simulated activity was managed and controlled by appropriate steps taken by Skorupa.
Submissions on Damages
(a) Pursuer
(b) Defenders
(1) The examination findings after the accident of local tenderness on the left side of the lower back and tingling in the buttock as noted in St John's Hospital admission record (No 10/2 of process) were not consistent with degenerative changes in the facet joints. Tingling was a function of nerve injury.
(2) The report of the community physiotherapist in the GP records (No 10/4 of process) dated 2 May 1995 indicated a muscular injury.
(3) The pursuer's evidence was that he suffered fairly constant back pain for the first seven or eight months after the accident. The pain then started to fluctuate.
(4) CT Myelography in July 1995 showed only minor disc bulges at L4/5 and L5/S1 level. The mechanism of the injury was not compatible with causing significant damage at that level which was the subsequent site of phenol ablation.
(5) The pursuer gave evidence to the effect that both sets of facet joint injections did not work for him. The medical evidence was that the first injections in March 1996 may have been in part effective. The second injection was ineffective. Mr Cochrane therefore concluded that the facet joints were not the site of ongoing pain.
(6) Mr Cochrane's findings in chronology were consistent with the relatively optimistic first report of Mr Court Brown in 1996.
The Objection
The Merits
Common law case
The statutory case
"Each employer shall -
In order to establish such a case, the pursuer has to prove that the defenders failed to make a suitable and sufficient assessment of the task to be undertaken, namely, the L3 drill. Further the pursuer has to prove that the defenders failed to take appropriate steps to reduce the risk of injury to the fire-fighters to the lowest level reasonably practicable. In my opinion that case fails also. Mr Skorupa in my view did carry out the required assessment of risk. He was aware of the changing weather conditions all that day. He had it in mind not to conduct the L3 drill even up to his arrival at Linlithgow. He did assess the conditions before starting the drill. Furthermore he did take all precautions to minimise any risk of injury by stationing extra men in the "sensitive" positions. In the event that saved any catastrophic outcome. All the men whom he assigned the drill were experienced, apart from Scott, and it is clear that the support he offered Scott was more than adequate. He could not have anticipated that the pursuer would have acted in the way in which he did. In my opinion therefore the case under the Regulation also fails.
Contributory negligence
DAMAGES
The back injury
Psychological evidence
QUANTUM OF DAMAGES