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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon v. Lothian and Borders Fire Board [2002] ScotCS 53 (26th February, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/53.html Cite as: [2002] ScotCS 53

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Gordon v. Lothian and Borders Fire Board [2002] ScotCS 53 (26th February, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF T.G. COUTTS, Q.C. sitting as a Temporary Judge in the cause DOUGLAS STUART GORDON, Pursuer; against LOTHIAN & BORDERS FIRE BOARD, Defenders:   ________________

 

 

Pursuer: Campbell; Thompsons

Defenders: Cobb; Edward Bain

26 February 2002

1. The pursuer, a 48 year old firefighter, sought damages from his employers for injuries he claimed to have sustained on 12 February 1997 while attending a rescue line training course. The training was for the purpose of introducing the pursuer, and others, to line rescue equipment and the operation of safety line control. Firefighter Peacock was in overall charge. At the incident in question he was supervising the pursuer and Firefighter Robert Bertram. The training activity conducted was from the third storey of the defenders' training tower at Tollcross, Edinburgh. That storey was about 10 metres above the ground. Its balcony, was about 3.5 metres wide and 1.5 metres deep enclosed by three walls and a railing, the railing being about 1.2 metres high. At the centre of the railing there was an upright post. The back wall of this balcony on one side of the post had doors in it and the other side had windows. The pursuer was to descend by means of a descent line anchored at the fourth storey. That line passed through an SRT system which is a friction device attached to a harness worn by the descending officer through which device the descent rope is passed. The SRT has a descender handle by which the descending officer controls his descent. The SRT comprises a series of interchangeable cams through which the rope is wound. When the descending officer does not operate the handle the rope is held fast. If the handle is depressed fully, the rope is again held fast. The rope can move through the descender only when some intermediate position of the handle is adopted.
2. In addition there was a safety rope. It was described as dynamic in that it had more elasticity than the descender rope. The safety rope was attached to the descending fireman's harness and ran from there through a special plate attached to the third storey railing. Thereafter it was operated by the belay operator, Mr Bertram, who on the occasion in question was situated at the rear of the balcony.
3. When Mr Bertram was operating the belay as the pursuer descended, he could see the commencement of the descent but no more because of his position at the rear of the platform. He was placed by, or his placing was acquiesced in by Mr Peacock. Mr Peacock, acting as spotter standing by the balcony railing, ascertained that the pursuer was ready to descend. Mr Peacock then instructed Mr Bertram to unloosen the knot by which the safety rope was held and attached to the braking mechanism. The pursuer thereafter operated the descender handle when he chose and began his descent. His descent became very rapid over a short space of time. When Mr Bertram, after about 4 feet of the safety line had passed through his hand, observed that the pursuer was having a rapid descent, he operated the safety line braking mechanism and the pursuer's descent was halted. After a few moments the pursuer continued his descent by means of the SRT descender mechanism without further mishap or loss of control.
4. The pursuer claimed that he had swung into the second floor balcony area which was of similar dimensions to the upper, and that he fended himself away from a wall and window using his right arm. For this to happen he would have required to have fallen far enough for his body to be able to be wholly within the balcony while still attached to the ropes. The pursuer was under 6 feet in height. The rope was attached to the harness just below his breastbone. He said in evidence that he fell about 2.5 metres. However, on the day after the accident, in two separate accident reports signed by him, he said that he fell 1.5 metres. If he fell 1.5 metres he did not have sufficient loose rope to enable him to contact the internal wall of the second floor balcony or any windows thereon.
5. The pursuer said he fended himself off the wall in order to avoid crashing into a window. His evidence was that he was descending on a line which was opposite the window. He was supported in that by one other witness, although two witnesses, including Mr Peacock, said he had been descending at a position where the rope was opposite doorways and not opposite windows at all. The distance the pursuer fell before he came to a halt was variously estimated by each of the witnesses present, all of whose recollections were imperfect. One witness, Mr Napier, who was on the third floor balcony, said that the pursuer's head was visible when his fall was arrested. No witness was able to confirm that the pursuer had at any time been within the railing of the second floor balcony. The pursuer himself in his accident reports made no mention of fending himself off the wall.
6. In the light of the whole evidence I am unable to accept that the pursuer has established on the balance of probabilities that he did fend himself off from the wall with his right arm. That is of particular importance because without a significant fending movement the entire medical speculation contained in reports made by specialists two years or more after the event, about not only the accident but also about any injury sustained is invalidated.
7. That the pursuer had a sudden rapid descent caused, most likely, by the inadequate way he operated the descender handle, is clear. He may have bumped into some part of the structure of the tower thereby causing the discomfort to the back of his legs and the jolting of his back and shoulders which he reported the following day. That, however, is not the case which he sought to make in his evidence to the Court.
8. The pursuer's entire claim is based upon the alleged fault of Mr Bertram who, the pursuer said, failed to take reasonable care for his safety. The cases pled were that it was Mr Bertram's duty to take reasonable care to position himself so as to be able to observe the pursuer's descent. There is no merit whatsoever in that contention since the entire operation was under the control of Mr Peacock who had acquiesced in, if not actually stationed, Mr Bertram in the position he was. The next specific duty alleged is that it was Mr Bertram's duty to take reasonable care to pay attention to the rate of the pursuer's descent. That duty is accepted, but I find it was fulfilled. Having heard the evidence of Mr Bertram I was satisfied that he did take care to observe the safety rope and that when he found it was being drawn through the safety mechanism too fast, he took immediate steps to arrest it in the way in which he was instructed. That he did so was evidenced not only by his own statement to the court, but also by Mr Peacock, who said that when the pursuer began to descend quickly he turned to tell Mr Bertram to stop or brake and found that he had already done so. Even more significant was the evidence of the experienced Firefighter Andrew Whitelaw who said in terms from his experience that Mr Bertram's operation of the braking and arresting mechanism was "no slower than anyone else".
9. It has therefore been established that Mr Bertram fulfilled any duties incumbent upon him in connection with his operation of the safety rope. The safety rope was not intended to control the rate of descent. The safety rope was intended to be utilised to arrest a rapid descent or fall for any reason. It was never the function of the safety rope to control the speed at which a descending firefighter progressed.
10. Since on any view of the mechanics of the accident no fault can be established against Mr Bertram, the defenders are entitled to absolvitor. However, as above indicated, I was not satisfied that the pursuer had established the accident he alleged to have occurred in his evidence.
11. On the footing that the pursuer had fended himself from a collision with a wall and thereby occasioned a jar to his right acromio-clavicular joint, counsel for the pursuer suggested that an appropriate sum of damages for solatium was £5,000. Counsel for the defenders suggested £3,000. The evidence was that the pursuer had suffered very few restrictions in his normal life at any time. He was never off work and is still fit to do the work of a firefighter. It is only at the extremes of either sport or exercise that he has some discomfort. The picture is further complicated by two further incidents involving the pursuer's shoulder. The first occurred in August 1997 when at another training course his right shoulder was hit by a stretcher. He made no complaint or accident report about that matter. Shortly thereafter, while attending a building in which a pan was thought to be on fire, he charged a door with his right shoulder in order to rupture the lock. He explained that he did not think anything about it, but I find it inconceivable, had the pursuer been suffering any degree of material discomfort in his right shoulder, that he would have launched his shoulder at a locked door. Until October 1997, the pursuer was not materially inconvenienced by any injury he might have sustained in February 1997. That view is supported by the fact that it was only after the last incident that he consulted and sought treatment from his general practitioner. No doubt on the footing that he was jarred at the incident in February, it was reasonable for it to be said by Miss McQueen, the consultant surgeon, that an asymptomatic degenerative condition of his shoulder became symptomatic and that thereafter everything followed therefrom. But, since I am unable to hold that it has been established that there was such a jar or indeed that there could have been such, there is no basis for the orthopaedic evidence.
12. Had I been awarding damages in the present action, I would not have considered that the £3,000 suggested by counsel for the defenders was an appropriate sum. Any injury sustained was in truth trivial. It did not cause any material discomfort until it was further exacerbated by the pursuer's own action in charging a door and in all the circumstances I would not have considered that the value of the claim was more than £1,500.
13. In the event, however, I shall sustain the second and third pleas-in-law for the defender, repel the pursuer's pleas and grant decree of absolvitor.