Scottish Court of Session Decisions

Neither party supported that proposition. Both accepted, in my view correctly, that for the purpose of assessing whether, and in what respects, the manual handling operation involved a risk of injury and whether the defenders took appropriate steps to reduce the risk of injury to the lowest level reasonably practicable, it was necessary to take account of Scott's inexperience and the fact that Drill L3 was being carried out as a training exercise primarily for his benefit.

The pursuer submitted that the latter proposition was incorrect. In order to make a case under regulation 4(1)(b)(ii), all that he required to prove was (i) that he was engaged in a manual handling operation, (ii) that it gave rise to a risk of injury; (iii) that an event falling within the ambit of that risk occurred and (iv) that actual injury was thereby caused. If these matters were proved the pursuer was entitled to succeed unless the defenders made out the statutory defence that they had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The defenders accepted that that was so.

Secondly, Mr Tyre listed the steps which were taken in the light of the participation of an inexperienced firefighter in the operation. These steps were (i) explanation of the operation to Scott by Skorupa; (ii) demonstration of the drill to Scott by a crew of experienced firefighters; (iii) the fact that the demonstration was undertaken in stages and at a slow pace to facilitate observation by Scott and explanation by Skorupa; and (iv) the presence of additional personnel, namely Tuplin and (by the time Scott was taking an active part) Armstrong. These steps, Mr Tyre submitted, were those that were reasonably practicable to counter the increased risk due to Scott's participation. I shall return in due course to Mr Tyre's submissions concerning the steps which it was appropriate to take in respect of the weather conditions.

Unfortunately, the part of the Fire Service Drill Book dealing with that alternative drill (if there is such a part) was not produced, and the alternative drill was not pursued in more detail in evidence. It seems to me, however, that the suggestion that that drill should have been adopted suffers from the same defect as the suggestion that that the ladder should have been pitched to a lower level - it does not amount to a safer way of carrying out the manual handling operation in question; on the contrary it involves substituting a different manual handling operation. The point of the manual handling operation carried out on the evening when the accident happened was to train Scott in Drill L3. Even if the wind conditions that evening could properly be described as "high wind", which I doubt, to carry out the more complex drill designed for high wind conditions would not serve the intended purpose of training Scott in Drill L3. I am therefore of opinion that in the training context adoption of the alternative drill designed for high wind conditions cannot be regarded as the taking of appropriate steps to reduce the risk arising from Drill L3 to the lowest level reasonably practicable.

In accepting that a gust of wind was the likely cause of the loss of control of the ladder head he said (at Appendix page 1270B):

At Appendix page 1293C he accepted that a blustery wind is unpredictable. The other firefighters who gave evidence did not express the view that the weather conditions on the evening in question were inappropriate for the conduct of Drill L3.