19 March 2010

Tales from Parliament House Vol. 2 - Army negligence

The grey face of Parliament House, with its Classical flourishes, always felt very Edinburgh to me. Slender sphinxes perched atop its pillared roof, the geometric sunburst stonework arches of its façade, recorded in grey. While in the centre of the Parliament Square, as Robert Louis Stevenson had it in his Picturesque Notes on Edinburgh, a "bandy-legged and garlanded Charles Second, made of lead, bestrides a tun-bellied charger. The King has his back turned, and, as you look, seems to be trotting clumsily away..." Erected in 1685, it is an appalling statue. The Spanielesque Charles II of the popular consciousness is rendered instead in the manner of an equestrian Roman general or Caesar, wielding something which resembles a decidedly plain club of state. The proportions are all wrong. Meanwhile, in composing the dedication chipped across its Craigleith sandstone plinth, the chipper (Robert Mylne, the Kings Master Mason in Scotland) seems to have failed to account for the spatial distribution of his script across the stone's face. His panic to fit it all in seems to mount as the text continues, here narrowly compressed, there inflated and elbowing neighbouring letters impertinently.

Inside the House of course, past its famous roof and hall, the Court of Session goes about its legal business. This week, I wanted to highlight just a couple of jurisprudential items. Firstly, we return to the plueural plaques litigation on the legislative competence of Holyrood's Damages (Asbestos-Related Conditions)(Scotland) Act 2009 and its newest episode. Against the strenous but somewhat Quixotic and desparate submissions of Richard Keen QC (Dean of the Faculty of Advocates and Counsel to the litigating insurers), 11 individuals who are potential beneficiaries under the Act have been granted leave to enter the insurers' judicial review proceedings under the Rules of Court. Functionally, this means that while it primarily falls to the Lord Advocate to vindicate the validity and competence of Holyrood's legislation in Court, the insurers will now also have to contend with the arguments of counsel representing these 11 folk. Coincidentally enough, their advocate is the sometime moonlighting Platonic-Aristotelian analyst, Aidan O'Neill QC. Although the latter made clear he won't be burdening the Court's time by replicating the Law Officers' submissions, between them they should give the chancer insurers a run for their money. And ultimately, I trust, these eleven folk their democratically mandated compensation.

Secondly, I wanted to mention the case of Margaret Valentine v. the Ministry of Defence. The case got some coverage in the Scotsman this morning. Valentine's son, Sapper Robert Thomson, aged only 22, died in Iraq in 2004. He was not killed by enemy fire, however, but was, in the words of Lord Bonomy's judgement "buried and crushed by the collapse of earth within a trench from which he and another sapper were engaged in recovering soil samples." The tragic, miserable facts were these:

[2] Many of the facts are uncontentious. At the time, Sapper Thomson was attached to 62 Works Group Royal Engineers located at Basra Palace. He was instructed by then Staff Sergeant, now Warrant Officer, Craig Lee Dutton to assist Sapper Craig Douglas Price who was tasked by Dutton to excavate a trench or trial pit, in order to obtain soil samples from various depths, using a light wheeled tractor similar to a JCB. These were required in connection with a proposal to build a jetty at the Shatt al'Arab Waterway. The digging was done within fifteen metres of the Waterway.

[3] Dutton described Thomson as a banksman to Price in retrieving soil samples. He was involved simply because he was available. He was to assist Price as well as act as eyes and ears for hazards, for example, any hazard he spotted in the course of executing the work or any person approaching the site. The task involved using the extending arm of the digger, with a bucket or hoe on the end of it, to dig out a trench which would be the width of the bucket (600mm or 750mm, no one was sure) or a bit more, and was in fact somewhere between 600mm and 1000mm wide, to the maximum depth that the digger could go, which was around three metres. It initially took around 30 minutes to complete the task. That involved identifying apparent changes in the soil composition and taking samples and measuring the depth where these occurred. Price operated the digger. He placed the bulk of the spoil to one side of the trench and sufficient, somewhere between a bucket and two bucketfuls, to the other side whenever a change occurred, for the deceased to shovel into a black plastic bag as a sample. When the task was completed, the area which had been dug out was reinstated by backfilling the spoil into the trench. The sample bags were then taken to the headquarters. When Dutton checked them, about half an hour later, he noted that what was apparently the deepest sample was too small. He directed Price and Thomson to go and get another sample at that depth. They realised that they had messed it up and readily went off to do so.

[4] It is not entirely clear whether they simply dug out the original trench again and took a further sample from the bottom, or dug a fresh one nearby. I consider that it does not actually matter in the end of the day, but tend to the view that, at least in part, what they dug out was a separate trench. I shall refer to that further at a later stage in this opinion. When Thomson signalled to Price that they had reached the maximum depth for the machine, Price stopped digging, moved the boom of the unit to the left away from the hole, and placed the buckets onto the ground to make it safe. He then pulled the seat lever to rotate the seat so that he was facing forward in the cab. His back was to Thomson as he began to dismount from the cab on the far side of the JCB from Thomson. By the time he was dismounting, no more than a minute after he had last seen Thomson standing one to three metres from the trench, Thomson was at the bottom of the trench trapped under clay material which had become dislodged from a point in the wall of the trench about one metre down and below. Frantic efforts to rescue Sapper Thomson ensued. Sadly these proved futile. No one saw how he came to be in the trench.

The Ministry of Defence argued that Thomson's presence in the trench was solely his own fault , his death wholly attributable to his own actions - or very substantially caused by the same. If you are interested, you can read the discussion in the case itself. In para [40], having cited particular reasonable preventitative steps, Lord Bonomy held that:

"the failure of the Ministry of Defence to take these reasonable steps to prevent a fall into the trench, the deceased would not have fallen in. That in the circumstances was a breach of the Ministry's duty of care to the deceased at common law. They failed to carry out an adequate risk assessment with the result that they failed to devise and institute a safe system of work for carrying out the task of taking the soil samples. In addition, the workplace was not safe as a result. The Ministry's breach of the duty of care owed to Sapper Thomson caused him to fall into the trench and thus caused his death"

That being so, he awarded damages to Valentine to the tune of £42,000. Knowing next to bugger all about the law on personal injury, I cannot mount a cogent critique or comment on the case from a legal angle. That said, Valentine and her family have my heartfelt sympathies for their loss.

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