- HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE - PDF document

- HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Robb (Appellant) v. Salamis (M & I) Limited (formerly known as Salamis Marine & Industrial Limited) (Respondents) (Scotland) [2006] UKHL 56 LORD HOPE OF CRAIGHEAD My Lords, 1. The pursuer raised an action in the Sheriff Court at Aberdeen in which he claimed damages against his employers for personal injuries suffered on 6 September 1999 while he was working offshore on a semi-submersible production platform. His sole case of fault was that the accident was caused by his employers’ breach of regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (“the Work Equipment Regulations”). 2. On 16 October 2003 the sheriff (D J Cusine) held that his employers were not in breach of either of those regulations and that in any event the accident was caused wholly by the pursuer’s own fault. The pursuer appealed to the Inner House of the Court of Session against the sheriff’s interlocutor. On 16 March 2005 an Extra Division (Lord Penrose, Lady Cosgrove and Lord Reed) altered the sheriff’s finding of contributory negligence by finding that the pursuer was 50% to blame for the accident but otherwise refused the appeal: 2005 SLT 523. The appellant now appeals to your Lordships’ House under section 32(5) of the Court of Session Act 1988, which states that the judgment of the Court of Session on any appeal from the judgment of the sheriff shall be appealable to the House of Lords only on matters of law. 3. There are two questions of law before your Lordships. The first is whether the pursuer has established that the defenders were in breach of their statutory duty. The answer to this question is to found by construing the regulations and then applying them, according to their proper construction, to the facts. The second is whether the sheriff had a - “12. These ladders were removable and they were frequently removed and replaced. Sometimes persons occupying the lower bunks would remove them and place them on unoccupied top bunks. Sometimes they would be removed by stewards who came into the cabins to make up the bunks and clean and tidy the accommodation. The pursuer was aware that these things happened. 13. When the ladders were being replaced, the person replacing them might not replace them properly within the metal retainers. 14. On the morning of 6 September, the pursuer got into the top bunk by standing on a chair, which was not uncommon. Had the pursuer used the ladder to get into the bunk, he would have know whether the ladder was securely in the metal retainers or not. 15. If the ladder was not properly engaged within the metal retainers, it might become dislodged and might fall when being used. Had the ladder been properly engaged, it is highly unlikely that it would have dislodged accidentally. 16. When the pursuer awoke at approximately 4.30pm on 6 September, he made to descend from his bunk using the ladder. He sat on the bunk facing outwards and put his full weight on his right foot on a rung of the ladder. Before doing so, the pursuer did not check to see whether the ladder was properly engaged. 17. As soon as the pursuer’s weight was on the ladder, it gave way and he fell to the floor, a distance of approximately 5 feet.” 7. Within 9 months after the accident the owners of the platform had adapted all the ladders by drilling holes through the horizontal metal plates and the J-shaped metal retainers. The ladders were then fixed by means of screws onto the wooden rails on the top and bottom bunks. As a result of this adaptation the ladders cannot now be moved. The possibility of their not being replaced properly has effectively been eliminated. The sheriff found that this was a straightforward, simple and inexpensive operation which it would have been reasonably practicable to carry out before the pursuer met with his accident. 8. The first question is whether, on these findings, the pursuer has succeeded in establishing his case that the accident was caused by a breach of regulations 4 and 20 of the Work Equipment Regulations. - and replaced by the 1998 Work Equipment Regulations with which this case is concerned. 11. Among the sheriff’s findings in fact and law were findings that the pursuer was not “at work” at the time of his accident and that the ladder and its metal retainers did not constitute “work equipment” within the meaning of the Work Equipment Regulations. The Extra Division reversed these findings, and there has been no appeal against that part of its interlocutor. The case was argued before your Lordships on the assumption, which I regard as entirely justified, that the pursuer was at work within the meaning of those Regulations at the time of his accident and that the ladder and its metal retainers were work equipment as defined by regulation 2(1). The pursuer gave notice in his pleadings that he was alleging a breach of regulation 5, which provides by paragraph (1) that every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. But this argument was not developed at the proof. The regulations on which the sheriff was asked to make his findings were regulations 4 and 20. 12. Regulations 4 and 20 of the Work Equipment Regulations provide as follows: “4.(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. (2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment. (3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable. (4) In this regulation ‘suitable’ means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person. 20. Every employer shall ensure that work equipment or any part of work equipment is stabilised by clamping or otherwise where necessary for purposes of health and s - Regulation 4 of the Work Equipment Regulations gives effect to article 3(1) of this Directive. But there is no definition in the Work Equipment Directive of the meaning that the word “suitable” is to have for the purposes of article 3(1). This must be borne in mind when the definition of this word in regulation 4(4) is being considered. So too must article 1 of the Framework Directive. The dominant purpose of all these provisions is to encourage improvements in the safety and health of workers at work. In my opinion the purpose of regulation 4(4) is to ensure, not to reduce, the protection provided for by article 3(1) of the Work Equipment Directive that regulation 4(1) was designed to implement. 16. Article 4, which deals with rules concerning work equipment, states that, without prejudice to article 3, the employer must obtain and/or use work equipment which complies with the minimum requirements laid down in the Annex to the Directive. Rule 2.6 of the Annex provides: “Work equipment and parts of such equipment must, where necessary for the safety and health of workers, be stabilized by clamping or some other means.” That rule is given effect to by regulation 20 of the Work Equipment Regulations. The reasons given by the courts below 17. The sheriff dealt first with the question whether regulations 4(1) and 4(3) of the Work Equipment Regulations had been breached. At p 34 of his note he said: “The obligation in regulation 4 is governed by what is reasonably foreseeable and in my opinion, the test which has to be applied is not whether these particular defenders foresaw the possibility of an accident, but whether an employer in the position of the defenders could reasonably foresee such an accident. Given that there was no evidence about previous accidents of this kind, it was not reasonably foreseeable by the defenders that the ladders might be incorrectly positioned or not fully engaged in the - 20. The opinion of the Extra Division was delivered by Lord Penrose: 2005 SLT 523. The relevant passages are to be found at pp538541. He dealt first with regulation 20, which he said raised issues of reasonable foreseeability which were similar to those under regulation 4. In para 107 he rejected permanent clamping as a solution to the problem of misplacement relative to its brackets of a ladder that was intended to be moveable. He appears to have done so without examining the question whether, because of risks to workers using the ladders, clamping to hold them in position was necessary. Dealing then in para 108 with regulation 4, he referred to Bodey J’s observation about foreseeability in Horton, para 10. Developing this point at p 538J-K he said: “The test of necessity is related to what an employer, conscious of his obligations to his employees, would do to ensure health and safety in knowledge of the range of risks identified and assessed on a careful analysis of the operations involved and the work equipment made available. The employer would not be required to take steps to counter risks that were mere possibilities beyond the range of reasonable foreseeability. Reasonable foreseeability is an express test of suitability for the purposes of regulation 4.” 21. He summarised the sheriff’s decision on the facts in the opening sentence of para 110: “The sheriff considered that it was not reasonably foreseeable by the respondents that the ladder on the pursuer’s bunk would not be replaced properly and hence not be fully engaged in the J-brackets on the bunk” He declined to examine various theoretical ways in which the ladder might have been improperly replaced. He said that it was not appropriate to approach the issue on that level of generality. He concentrated instead on what he described as the manifestation of improper replacement that was presented to the sheriff and demonstrated for his benefit. Having done so, he concluded in para 115 that the sheriff was not bound to find that the risk of injury associated with the improper placing of a ladder on the J-section brackets for long enough for the state of instability to subsist when an employee attempted to descend the ladder was reasonably foreseeable. - work equipment which is made available to workers may be used by them without impairment to their safety or health: see article 3(1) of the Work Equipment Directive. This is an absolute and continuing duty, which extends to every aspect related to their work: see article 5(1) of the Framework Directive. It is in that context that the issue of foreseeability becomes relevant. The obligation is to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen. The sheriff misdirected himself on this point. 25. Regulation 4(2) serves to underline this approach. The obligation in this paragraph implements the second paragraph of article 3(1) of the Work Equipment Directive. It requires that an assessment of risk be carried out before the work equipment is used by or provided for persons whose health or safety may be at risk. The aim is to identify the risks to the health and safety of workers if things go wrong. It is a short and simple step, for example, to appreciate that if a ladder becomes unstable or slips while it is being used the worker is likely to be injured. That is the risk that must be faced wherever and whenever a ladder is provided. The risk of injury if such events occur is reasonably foreseeable. Work equipment that is not so constructed or adapted as to eliminate that risk is not suitable within the meaning of regulation 4(1). 26. Regulation 4(2) refers to the working conditions which exist in the premises or undertaking where the work equipment is to be used. These words must be interpreted broadly, bearing in mind that the question is whether the work equipment is suitable. The employer must take account of work that has to be done in the premises by others than those for whom the work equipment is used or provided, such as that done by the stewards referred to by the sheriff in his finding of fact 12. It was recognised long ago that the employer must take into account what in Hindle v Birtwistle [1897] 1 QB 192, 195 Wills J referred to as “the contingency of carelessness”. That was a case about the duty to fence all dangerous parts of machinery under section 5 of the Factory and Workshop Act 1878: see now regulation 11 of the Work Equipment Regulations. 27. There is a good deal of subsequent authority. In Mitchell v North British Rubber Co Ltd 1945 JC 69, 73, for example, commenting on the word “dangerous” in section 14(1) of the Factories Act 1937, Lord Justice Clerk Cooper said: - “The question is not whether the occupiers of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent on his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?” In John Summers & Sons Ltd v Frost [1955] AC 740, 753, referring again to the duty to “securely fence” every dangerous part of machinery, Viscount Simonds said that it was elementary that it is necessary to consider not only the risk run by a skilled and careful man who never relaxes his vigilance. At pp 765-6 Lord Reid quoted authority to the same effect, including Lord Justice Clerk Cooper’s observation in Mitchell: see also Close v Steel Company of Wales Ltd [1962] AC 367. 28. In this case the suspended ladders could be removed. Once removed they would have to be replaced if they were to be used for the purpose for which they were provided. Carelessness in their replacement was one of the risks that had to be anticipated and addressed before the defenders could be satisfied that the suspended ladders were suitable and that fixing of the ladders to the bunks by clamping or otherwise was unnecessary. 29. Their Lordships of the Extra Division did not rely on the lack of evidence of previous accidents. But they concentrated too much on the foreseeability of one particular mechanism of instability. The risk that a person may fall from a ladder if it slips because it is not fixed securely is a known risk. The question is whether that risk was foreseeable in this case. The issue of whether there was a risk that the ladder might not be replaced properly ought to have been examined as a matter of generality. This was an exercise which the Extra Division expressly rejected: see para 110. But generality is what a risk assessment exercise of the kind referred to in regulation 4(2) requires. The scope of the exercise is no less exacting than that required at common law. The employer must anticipate that it may not be possible to predict the precise ways in - in support of the proposition that a risk assessment was relevant to the identification of what the employer should have done: p 534. Lord Penrose said in para 109 that he had reservations about some of the comments that were made in that case about the assumptions that the employer is to make when he is considering what is required of him by regulation 4. In para 29 of his judgment Clarke LJ said that the assumption is that the work equipment will be properly operated by properly trained and instructed personnel. In para 47 Judge LJ said that in his judgment work equipment is not to be regarded as unsuitable for the purposes of the Work Equipment Regulations when injury results from inadequate control of or mishandling of the equipment which would otherwise have been safe for use by the employee seeking damages for breach of statutory duty. I think that Lord Penrose was right to draw attention to the problems that these passages might cause if they were to be taken too literally. For the reasons that I mentioned earlier, account must be taken of the risk of mishandling by the careless or inattentive worker as well as by the skilled worker who follows instructions to the letter conscientiously every time and strives never to do anything wrong. The solution to the problem that these passages raise is to be found in the defence of contributory negligence. Contributory negligence 33. The Extra Division dealt with this issue briefly in paras 118-120. The Sheriff held that the pursuer was wholly to blame for the accident. This was because he knew that the ladders were often removed from their retaining brackets and not replaced. So he ought to have checked the condition of the ladder before using it to descend from his bunk. He added that, as a scaffolder, the pursuer ought to have been more careful with ladders. The Extra Division rejected the pursuer’s argument that the sheriff had no real basis for his finding, as no knowledge was imputed to him in the findings of fact that the ladders might not be replaced properly and that if that happened they might become dislodged when used and cause injury. But, in the absence of any clear distinction between the contributors, it reduced the pursuer’s share of the blame to 50%. 34. It is true that there is no finding in fact that the pursuer knew that, when the ladders were replaced, the person replacing them might not replace them properly. Mr Stewart founded on this point as indicating that the pursuer had no foreknowledge of the circumstances of the accident and that it was not caused to any extent by anything that he did or failed to do. On the other hand there is a finding that the pursuer - the Extra Division as reparation for the loss, injury and damage which the pursuer sustained due to the accident. LORD CLYDE My Lords, 37. The pursuer and appellant was injured when descending from his bunk on an offshore installation. When he placed his weight on a ladder provided for his use it became dislodged from the brackets in which it was intended that it should have been placed. He claimed damages for his injury from his employers who are the respondents. His claim was founded on breaches of Regulations 4(1) and (3) and Regulation 20 of the Work Equipment Regulations 1998. The application of these regulations has been matter of dispute in the courts below, but it is now accepted, following the decision of the Extra Division, that the appellant was “at work” at the relevant time and that the ladder was “work equipment” for the purposes of the regulations. 38. The principal issue in this case has come to be one of foreseeability. The argument proceeded upon the basis that Regulation 4(4) of the 1998 Regulations imported into both paragraphs (1) and (3) an element of reasonable foreseeability. Correspondingly it was accepted that in Regulation 20 the word “necessary” fell to be tested by what was reasonably foreseeable. The arguments before this House turned for the most part upon the approach to be adopted in the application of this test to the facts. 39. The Sheriff made no express finding in fact on the matter of reasonable forseeability. However in his Note he expressed the view that “Given that there was no evidence about previous accidents of this kind” the insecurity of the ladder and the consequent injury to the pursuer was not reasonably foreseeable. The determining factor for him was plainly the absence of precedent. The Extra Division correctly rejected that approach. But the Division in my view also erred in defining too narrowly what the employer was required to foresee. They defined this as “whether it was reasonably foreseeable (a) that the state of balance described could be achieved at all; and (b) that it would subsist when an employee attempted to use the ladder to descend”. But the precise mechanics of the accident do not require to be foreseeable for the risk of - below. The matter has accordingly in the event not been canvassed before us but to my mind it remains as a question which may yet have to be resolved. 46. The origin of Regulation 20 appears to be in paragraph 2.6 of the Annex to the Work Equipment Directive. That paragraph uses the word “necessary” and that word has been carried forward into the Regulations. The present case has proceeded on the basis that the word imports a requirement for reasonable foreseeability. Reference was made to Horton v Taplin Contracts Ltd. [2003] ICR 179. I should wish to reserve my opinion on the precise meaning which is appropriate for the word as used in the Directive, bearing in mind that its purpose, albeit in laying down minimum safety and health requirements, is nevertheless to achieve improvements. 47. Another question may be whether, if Article 5(4) is the basis for Regulation 4(4), it is appropriately transposed by the introduction of the concept of reasonable foreseeability. On the face of it the language of article 5(4) is significantly different. It speaks of “unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care”. It may be difficult to construe the words of the Regulation to equate with this language. But the meaning and effect of Regulation 4(4) has not been argued before us. 48. I do not do more than note these possible issues. While not expressing a view upon them I am conscious that the general purpose of the directives has been to encourage improvements to the existing levels of protection for the health and safety of workers. While they seek to lay down minimum standards it might be expected that they may not necessarily be looking to preserve standards which have existed at common law in relation to the employer’s liability in reparation to his employees and which may now be too low for current requirements for safety. The degree of foresight and the definition of the level of risk may remain matters for future consideration in the general development of the law in this area towards the greater safety of the workplace and the consequently higher levels of obligation on the employer. 49. However while these issues and others related to them have been waiting around the wings of this case, the argument has proceeded upon a more restricted front. On the assumptions upon which it has - the ladder when it had not been properly replaced in the retainers which were designed to hold it in position, it might become dislodged and fall and the person using it might be injured. In these circumstances, under regulation 20 it was the respondents’ duty to ensure that the ladder was stabilised by clamping, ie by screwing it to the bed, since this was necessary to avoid the risk of injury occurring in that way. This precaution has indeed been taken since the pursuer’s accident. It is true that, if the ladders had always been replaced as intended, they would have been safe. But ladders cannot be regarded as “suitable” in terms of regulation 4(1) and (4) if in practice they may well not be replaced properly, with the result that employees are liable to be injured when using them. Therefore, in the present context at least, I would not follow the approach to regulation 4(1) and (4) taken by the Court of Appeal in Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ 412. In these circumstances it was the defenders’ duty under regulation 4(1) to ensure that the ladders were adapted by screwing them to the bunks so as to avoid the risk of employees falling and injuring themselves when the ladders moved while they were on them. 53. Without modifying the sheriff’s findings in fact, the Extra Division explored exactly how the accident to the pursuer might have happened. They then held, 2005 SLT 523, 540, para 115, that the sheriff had to consider whether it was reasonably foreseeable that an employee would be injured in the way they described. In my respectful view that was the wrong test. The primary purpose of the relevant regulations is not to give a ground of action to employees who are injured in some particular way but to ensure that employers take the necessary steps to prevent foreseeable harm coming to their employees in the first place. Therefore, the respondents’ obligations under the regulation were triggered because it was reasonably foreseeable that an employee might injure himself while using a ladder which became dislodged and fell because it had not been replaced properly. The approach advocated by the Inner House would tend to limit the broad protection which the regulations are intended to provide. 54. Here the pursuer has proved that he was injured when using the ladder to get down from his bunk. Before putting his weight on the ladder, it would have been only sensible for the pursuer to check that it was stable. The sheriff held that, because he had failed to do so, the accident had been caused solely by the pursuer’s fault. That is tantamount to reintroducing the last opportunity rule which Parliament abolished in the Law Reform (Contributory Negligence) Act 1945. In truth, the accident was due to the fault of both parties. In a brief obiter observation, 2005 SLT 523, 541, para 120, the Extra Division indicated