Joined actions arising from the same incident in which the pursuers, firefighter French and trainee firefighter Dempsie, claimed damages against their employers, the Strathclyde Fire Board, on the basis of breaches of a common law duty of care, the
Personal Protective Equipment at Work Regulations 1992 and the
Provision and Use of Work Equipment Regulations 1998. The firefighters suffered injury caused by brickwork falling on them while they fought a fire.
Held, the defenders were liable to make reparation at both common law and under statute; In a claim based on common law negligence, the two crucial elements of foreseeability and the relevant standard of care requires an assessment of risks, which includes the probability of an event and the seriousness of the consequences if that event does in fact happen; The test for foreseeability requires an assessment of probable consequences, which means reasonably likely to occur and not a balance of probabilities.
Whippey v Jones [2009] EWCA Civ 452 affirmed as an accurate summary of the present state of the law. In the present case, it was eminently foreseeable that the wall would collapse; Whether the appropriate standard of care is that of an ordinary employer or that laid down in
Hunter v Hanley depends on the circumstances of the particular case. There is no sharp dividing line but a spectrum of possibilities, which requires that those who do not belong to a recognised profession display a standard of care and skill appropriate to their training and responsibilities. In the present case, the applicable standard of care was that of a skilled firefighter exercising reasonable care. As that was not a professional qualification, the
Hunter v Hanley test did not apply in its ordinary form but required the officer in charge to exhibit a special level of skill and care, which differed from that of an ordinary employer. It should have been apparent to a skilled firefighter that the advantages of forced entry were very limited when balanced with the likelihood of collapse. The defenders were therefore in breach of their common law duty of care; Reg. 4, 1992 Regs imposes strict liability where an employer fails to prevent significant injury by a failure to provide personal protective equipment. In the present case, the court hesitantly inferred from the joint minute that burn injuries were caused by the the inadequacy of the protective equipment worn. As liability is strict, it was no defence that the equipment issued was standard; Reg. 4, 1998 Regs also imposes strict liability where an employer fails to ensure work equipment is suitable for the purposes for which it is used or provided, which is based on foreseeability, determined broadly in the same was as at common law, and causation. In the present case, the essential requirements were made out: it was reasonably foreseeable to a skilled firefighter that the use of a Halligan tool in a situation where the gable end was unsupported and hence unstable was liable to cause a collapse of the gable wall, with a consequent risk of injury and, on a balance of probabilities, the tool caused vibrations which were a material cause of the collapse; Contributory negligence was not found. It was not reasonable to expect the pursuers to double check the overall risk assessment carried out by the officer in charge, whose primary responsibility was safety and the carrying out of dynamic risk assessments.
Damages agreed at £113,000 in the case of the first pursuer (French) and at £332,500 in the case of the second pursuer (Dempsie).
