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Judgments - Robb (Appellant) v. Salamis (M & I) Limited (formerly known as Salamis Marine & Industrial Limited) (Respondents) (Scotland)

HOUSE OF LORDS

SESSION 2006-07

[2006] UKHL 56

 

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)

 

Appellate Committee

 

Lord Hope of Craighead

Lord Clyde

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

 

 

Counsel

Appellants:

Angus Stewart QC

Jan McCall

(Instructed by Drummond Miller WS)

Respondents:

Ralph Smith QC

Nick Gardiner

(Instructed by Simpson and Marwick WS )

 

Hearing dates:

15 and 16 November 2006

 

on

WEDNESDAY 13 December 2006

 

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 sound basis in law for finding that the accident was caused to any extent by the fault of the pursuer.

The facts

    4.  At the time of the accident the platform was stationary in the Moray Firth about five miles offshore from Burghead. It was being fitted out in preparation for onward transit to the Buchan Field, where it was normally used for extracting oil and gas from beneath the North Sea. The pursuer's employers had contracted to supply scaffolding services to its owners while the platform was being fitted out, and he was working on board the platform as a scaffolder. The accident happened while he was in the accommodation that was provided for men working on the platform. It was equipped with two-tier bunks and with suspended ladders held in position by retaining bars which provided access to the top bunks. He had been sleeping on one of the top bunks. He attempted to descend from the top bunk using the suspended access ladder. The ladder was not properly engaged within the retaining bars. Both he and the ladder fell to the floor and he was injured.

    5.  The sheriff's findings of fact describe the situation in a little more detail. The ladders which provided access to the top bunks were situated at the foot of each bunk. Although he did not find as a fact that the ladders were suspended, that was what the pursuer averred and it was common ground that this was so. The pursuer also averred that the ladders were about 3 feet long, with 6 rungs and a base which was about 2 feet above the floor. The sheriff found that they were constructed with a horizontal metal bar between the top and bottom rails of the ladder, and that each bar fitted into a J-shaped metal retaining bar which was screwed to wooden bars which ran along the length of the top and bottom bunks. The Extra Division referred to the horizontal metal bars as "plates" and to the J-shaped metal retaining bars as "brackets". I prefer their words to those used by the sheriff, as they make it easier to understand how the system was meant to work. When the plates were properly engaged, they fitted neatly and securely into the retaining brackets. The sheriff found that it was not difficult to place the ladders into that position. Nor was it difficult to remove them from the retaining brackets.

    6.  The following findings of fact are directly relevant to the circumstances of the pursuer's accident:

    "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. The answer to it seems to me to be quite straightforward. The accident was caused by the fact that the ladder was not fixed in position when the pursuer tried to use it to descend from his bunk. It had not been replaced properly when it was last removed from the metal retaining brackets. This was due, no doubt, to the carelessness of the person who last handled it. No-one has suggested that this was done deliberately. When an employer is assessing the risks to which his employees may be exposed when using equipment that he provides for them to work with, he must consider not only the skilled and careful man who never relaxes his vigilance. He must take into consideration "the contingency of carelessness on the part of the workman in charge of it and the frequency with which that contingency is likely to arise": Hindle v Birtwistle [1897] 1 QB 192, 195 per Wills J; John Summers & Sons Ltd v Frost [1955] AC 740, 765 per Lord Reid. The ladder was not suitable for the purpose for which it was used and provided because a person replacing it might not replace it properly due to carelessness, and because a fall from a ladder which had not been replaced properly was likely to cause injury. That risk could have been avoided by screwing the ladder to the side of the bunks, as was done after the accident.

    9.  How then, on those simple facts, did the sheriff and their Lordships of the Extra Division come to the opposite conclusion on the question whether the defenders' statutory duty had been breached? Their reasons must be examined in the light of the words used by the regulations, which I will now set out.

The Work Equipment Regulations

    10.  The origin of the Work Equipment Regulations is to be found in Council Directive 89/391/EEC of 12 June 1989 ("the Framework Directive") and in Council Directive 89/655/EEC of 30 November 1989 ("the Work Equipment Directive") concerning the minimum safety and health requirements for the use of work equipment by workers at work. The Work Equipment Directive was one of six individual Directives which followed the Framework Directive, all of which had to be implemented by 31 December 1992. Among the regulations that were made under the Health and Safety at Work etc Act 1974 to give effect in national law to the Framework Directive and its "daughter" Directives were the Management of Health and Safety at Work Regulations 1992 (SI 1992/2051) ("the Management Regulations") and the Provision and Use of Work Equipment Regulations 1992 (SI 1992/2932). The Provision and Use of Work Equipment Regulations 1992 were repealed 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 safety."

    13.  The pursuer did not allege a breach of any of the Management Regulations. Mr Stewart QC said that this was because they do not give rise to civil liability. I would prefer to reserve my opinion on that point: see Redgrave's Health and Safety (4th ed, 2002), para 2.16. It is proper nevertheless, when construing regulations 4 and 20 of the Work Equipment Regulations, to take account of regulation 3(1) of the Management Regulations which provides:

    "Every employer shall make a suitable and sufficient assessment of -

    (a)  the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

    (b)  the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

    for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions."

Regulation 3(3) provides that an assessment of the kind referred to in paragraph (1) shall be reviewed by the employer who made it if there is reason to suspect that it is no longer valid or there has been a significant change in the matters to which it relates. These provisions provide the context for his obligations under regulations 4 and 20 of the Work Equipment Regulations.

    14.  It is necessary, when construing those regulations, to have regard also to the provisions of the Framework Directive and the Work Equipment Directive that the Work Equipment Regulations were designed to implement. The rule is that the domestic court must seek to interpret national law to achieve the same result as is intended by the relevant provision of EU law, where it is reasonably possible to do so: Pickstone v Freemans plc [1989] AC 66; Litster v Forth Dry Dock & Engineering Co 1989 SC (HL) 96, 105, per Lord Oliver of Aylmerton. Article 1 of the Framework Directive provides:

    "1.  The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.

…

    3.  This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work."

    Article 5 provides:

    "1.  The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.

…

    3.  The workers' obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.

    4.  This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to 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."

    15.  Article 3 of the Work Equipment Directive sets out the general obligations of employers. It provides:

    "1.  The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.

    In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of [the] work equipment in question.

    2.  Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimize the risks."

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 metal retainers and hence cause someone, like the pursuer, injury."

He then dealt with other risks of injury which, on his own findings, did not arise on the facts of this case. They were whether it was reasonably foreseeable that the ladder would be accidentally dislodged if it had been properly engaged in the retaining brackets and that the appellant might slip on the ladder even if he was taking great care.

    18.  Turning to regulation 20, the sheriff noted that the obligation to clamp or otherwise is qualified by the words "where necessary". He based his approach on Horton v Taplin Contracts Ltd [2003] ICR 179, where the claimant was injured when a scaffolding tower on which he was working was upset by the violent act of a fellow employee. The claimant's claim that his accident was caused by breaches of the 1992 Work Equipment Regulations was dismissed. It was held that the working place was only unsafe because of the fellow employee's unlawful intervention, which was not foreseeable. The sheriff referred to an observation by Bodey J in para 15 that to interpret regulation 5(2) of the Construction (Health, Safety and Welfare) Regulations 1996 without having regard to what was reasonably foreseeable would be an affront to common sense. That regulation, which provides that every place of work shall so far as reasonably practicable be made and kept safe, was not founded on by the appellant in this case. However Bodey J made the same point about regulation 20 of the Work Equipment Regulations in para 10 of his judgment. He observed that a step was only realistically necessary when the mischief to be guarded against could be reasonably foreseen. The sheriff said that in his opinion neither the ladder nor the metal retainers were inherently unsafe. He accepted the evidence of the appellant's expert that offshore installation operators tend to follow the pattern for ships, which was that ladders must be portable.

 
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