HMA v SCOTTISH FIRE AND RESCUE SERVICE

At the High Court in Edinburgh on 20 March 2015, Lord Uist imposed a fine of £54,000 on Scottish Fire and Rescue Service, after the accused organisation pleaded guilty to health and safety breaches following the death of firefighter Ewan Williamson.

“The accused organisation, Scottish Fire and Rescue Service, pleaded guilty to a contravention of sections 2(1), 2(2) and 33(1)(a) of the Health and Safety at Work etc Act 1974 in that their statutory predecessors, Lothian and Borders Fire and Rescue Board, to whose criminal liability they succeeded, failed to ensure, so far as reasonably practicable, the health safety and welfare at work of their employees engaged as firefighters, including Ewan Williamson, now deceased, in four separate respects. These were:

(first) failing, between 13 July 2008 and 12 July 2009, adequately to monitor and ensure attendance by fire fighters at training courses and failing to maintain adequate training records for them;

(secondly) failing, between 13 July 2008 and 12 July 2009, adequately to train  firefighters to ensure close personal contact was maintained during firefighting and search and rescue activities;

(thirdly) failing on 12 July 2009 at the fireground at the Balmoral Bar, 178 Dalry Road, Edinburgh to have in place an effective system of radio communication; and

(fourthly) failing on 12 July 2009 at the fireground at the Balmoral Bar to have in place an effective system of implementation of procedures for firefighters using breathing apparatus.

The charge goes on to state that in consequence of these failures during the said period of time the employees were exposed to risks to their health, safety and welfare at work and on 12 July 2009 Ewan Williamson, whilst working to detect and extinguish a fire within the Balmoral Bar in conditions of restricted visibility and extreme heat became trapped in a ground floor toilet and died there. I was informed by the Crown that, despite the terms of the charge, the only failure which was causally connected to Mr Williamson’s death was the second one, namely, the failure to adequately train firefighters to ensure close personal contact is maintained during firefighting and search and rescue activities.

The circumstances giving rise to the tragic death of Mr Williamson were, briefly, as follows. Shortly after midnight on Sunday 12 July 2009 a fire broke out in the basement office of the Balmoral Bar. This was almost certainly caused by the careless disposal of a lit cigarette in a waste bin containing papers. The Fire Service was summoned, as a result of which three water tenders and a turntable ladder vehicle attended.

Mr Williamson was a member of one of the crews. He was paired with a trainee firefighter, Mr Carrigan, in one of two breathing apparatus teams, who were instructed to make their way into the basement and there locate and extinguish the fire. Mr Carrigan and Mr Williamson entered the bar through the front door, taking with them a line of hose, and the second team followed them. Due to extensive smoke visibility was zero. With great difficulty Mr Williamson and Mr Carrigan made their way to the bottom of the stairs to the basement, where no fire was visible, although there was a great amount of smoke. After some time in the basement Mr Williamson and Mr Carrigan decided that it was time to service their breathing apparatus sets before their low pressure warning whistles activated. They then made their way out of the building following the line of the hose, as did the other breathing apparatus team.

The four firefighters then changed their breathing apparatus cylinders, consumed water and rested for about nine minutes. They discussed going back in to the building. A short time later Mr Williamson and Mr Carrigan were instructed to go back into the basement using the branch which they had left and to take a hose reel branch to afford them protection from any fires which might have started since they had last been in the building. They were not told that there were other firefighters in the building.

They then made their way with a charged hose reel back to the basement where conditions were broadly the same as before. They descended the stairs to the basement and found that it was much hotter than on their previous visit. Mr Carrigan heard the sound of water dripping below them and felt the hose pulsing as he made his way along it, an indication that there were other firefighters in the basement. Two to three metres into the basement they came across another team working on the branch, who informed them that they had not yet located the fire. The other team, having checked their gauges, informed Mr Carrigan and Mr Williamson that they were leaving and followed the line of hose out of the building.

Five minutes later Mr Williamson and Mr Carrigan, having decided that the heat had become unbearable and that it was dangerous to remain in the basement, came up the stairs from the basement. At the top of the stairs Mr Carrigan was helped up by another firefighter, Mr Black. Seconds later Mr Williamson passed Mr Black without stopping and said he was going outside to cool down. Mr Carrigan and Mr Williamson made their way along the back of the bar keeping low and following the line of the hose which they had laid earlier. When Mr Carrigan asked Mr Williamson if he was still on the hose Mr Williamson replied that he was. Mr Carrigan reached the hatch and went down the single step from the bar holding the hose. He was then still aware of Mr Williamson’s presence behind him. He did not stop and discuss any change of direction at the bar hatch with Mr Williamson as they had already agreed to follow the hoseline out of the building. Mr Carrigan followed the line of the hose, turning right at the hatch and then to the exit door, assuming that Mr Williamson would follow behind him.

Mr Williamson did not do so, but instead turned left and entered the gents’ toilets directly above the office in the basement, where the seat of the fire was. The reason why he did this is not known, but it might have been because there was a small bend in the hose pointing to the left. Mr Carrigan and Mr Williamson did not maintain sufficiently close personal contact when making their way from the top of the stairs towards the exit door. Had they done so, they would not have become separated. They had not been properly trained in the procedure for maintaining close personal contact.

When Mr Carrigan exited the building he stated that Mr Williamson was right behind him. This was not the case. A radio message sent to Mr Williamson asking him where he was received in response a message from him stating “I’ll be there in a minute, boss, I’m stuck, I think I’m stuck in a toilet.” Mr Carrigan, in breach of accepted procedure and despite the fact that he was being held back, courageously went back into the premises to the bar hatch in an unsuccessful effort to trace Mr Williamson. He was later found outside the building in a state of shock, traumatised and very hot. A subsequent radio message from Mr Williamson stated that he was unable to open the toilet door, was stuck and required assistance. He said he could not feel the hose and had ‘120 bar’ left. He was instructed to activate his distress signal unit so that his location could be heard.

Two breathing apparatus teams went into the bar towards where Mr Williamson had indicated in his message. They shouted his name loudly and attempted to contact him by radio without success. As they could not hear his distress signal and the heat was intense they had to withdraw from the bar. Another team which entered later found the floor of the bar to be unstable and sagging. At about this time there was a radio transmission from Mr Williamson stating something along the lines of “you’ll need to come back and get me; I’m in the toilet and cannae get out.” He sounded stressed and angry and was swearing. This was significant as the use of bad language at a fireground is strictly prohibited.

A team of two firefighters later entered the premises in an attempt to rescue Mr Williamson. One of them fell through the floor outside the toilet door but was caught by his colleague and both then managed to escape from the building. Eventually, after firefighters had made unsuccessful attempts to extinguish the fire in the basement and the bar had collapsed on itself and the fireground been evacuated, access was obtained to the toilet through a boarded-up window.

Mr Williamson was found lying on his side on the floor immediately beneath the window with his head against the corner and his body facing in towards the bar. He was unresponsive and in the pugilistic mode. The light was flashing on his distress signal unit, which was sounding at full alarm. He was dead and had been for some time before he was discovered. His body was removed from the building with considerable difficulty.

Life was formally pronounced extinct at Edinburgh Royal Infirmary at 3.20 am. At subsequent post mortem examination burning of a high percentage of his body surface was noted. This was most likely to have been caused by high temperatures, as opposed to direct contact with flames. The precise cause of death was uncertain, but it was clear that he had died in the fire.

It will be clear from the foregoing brief narrative that the lack of close personal contact between Mr Carrigan and Mr Williamson on the night, attributable to a deficiency in the training provided by Lothian and Borders Fire and Rescue Board, was only one of the causes which led to the death of Mr Williamson. The principal cause was, of course, the fire itself: other contributory causes were the deficient state of the floor in the bar, leading to its collapse, and the fact that the toilet window had been boarded up with eight layers of different materials.

For the detailed circumstances of the four separate failures I refer to the terms of the Crown narrative presented to the court, which I shall not repeat.

I must now determine the appropriate penalty to be imposed upon the accused organisation for their statutory predecessors’ breaches. They have no previous convictions and have received no prohibition notices. Their safety record, in the execution of what is inherently dangerous work, was described by their counsel as commendable and excellent. The tendering by them of a guilty plea acceptable to the Crown at the stage of the trial diet has avoided the need for a lengthy and expensive trial. Steps have been taken to remedy the deficiencies identified by what happened in the course of this incident. I accept the submission by counsel for the accused organisation that this case, which involved an isolated failing, falls very much at the lower end of the scale of criminal culpability. There has been a prompt acceptance of responsibility and co-operation of the highest degree by an employer with a good health and safety record.

My approach to determination of penalty must take into account that the accused organisation is not a commercial entity engaged in making a profit but a public body whose very purpose, in which it succeeds on a daily basis, is the prevention of injury and death and the preservation of property. Any fine imposed on them must not inhibit the performance by them of the public function which they have been set up to perform.

Taking all these factors into account, I consider that, had there been a conviction by a jury after trial, the appropriate penalty would have been a fine of £60,000. Although the indictment to which the guilty plea was tendered proceeded technically under the accelerated procedure provided for in section 76 of the Criminal Procedure (Scotland) Act 1995, it was in reality a plea at the stage of the trial diet under the indictment previously served. I therefore consider that a discount of 10% is appropriate for the guilty plea. The fine will therefore be discounted to £54,000, payable within 28 days and recoverable by civil diligence in default of payment. I shall remit this to the Sheriff Clerk at Perth for enforcement.  

Before parting with this case I wish to acknowledge and record the courage, dedication and professionalism of Mr Williamson, who lost his life in tragic circumstances while serving the public in the course of his duties as a firefighter.”

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