Robb v Salamis (M & I) Ltd

Work equipment is not suitable merely because it is safe when carefully handled. Under Provision and Use of Work Equipment Regulations 1998, regulation 4, an employer must assess foreseeable risks in the actual working environment, including the ordinary carelessness or inattention of those who may handle the equipment.

The employer need not foresee the precise mechanism of an accident. It is enough that a general risk of injury from insecure equipment is reasonably foreseeable. Where stabilising equipment is necessary to prevent that risk, regulation 20 requires clamping or other effective fixing. A worker's failure to take reasonable care for personal safety may reduce damages for contributory negligence.

The pursuer, a scaffolder working offshore, was injured when a removable ladder used to descend from an upper bunk fell because it had not been properly engaged in its retaining brackets. He alleged breaches of regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998.

The Sheriff Court at Aberdeen held that the employers had not breached the regulations and that the pursuer was wholly at fault. The Extra Division of the Court of Session, in 2005 SLT 523 and [2005] ScotCS CSIH_28, reduced the pursuer's contributory negligence to 50% but otherwise refused his appeal.

The House considered whether the removable ladder was suitable work equipment, whether it required stabilisation for health and safety, and whether there was a legal basis for the finding of contributory negligence.

1. The appeal was allowed unanimously. Lord Hope held that the employers had breached regulations 4(1) and 20 of the Provision and Use of Work Equipment Regulations 1998. Lord Scott and Lord Carswell expressly agreed with his reasons. Lord Clyde and Lord Rodger gave concurring reasons and agreed that the appeal should be allowed.

2. Per Lord Hope, regulation 4(1), read with regulation 4(4), required the employers to assess foreseeable risks before providing the equipment. The relevant risk was that a removable ladder might be carelessly replaced insecurely and would then fall when used. The absence of previous accidents did not make that risk unforeseeable. Nor was it necessary to predict the precise way in which the ladder would become unstable.

3. Lord Hope held that the Regulations, construed consistently with the Work Equipment Directive, required protection against foreseeable risks to health and safety. The assessment had to include the ordinary possibility of carelessness by workers and others who removed or replaced the ladder. Lord Rodger similarly stressed that an employer must take account of normally expected inattention or casual carelessness.

4. The ladder was therefore unsuitable under regulation 4(1). It was also necessary, for the purposes of regulation 20, to stabilise it by screwing or otherwise fixing it to the bunks. That simple measure would have removed the foreseeable risk. Lord Clyde agreed that the facts established breaches of regulations 4(1) and 20.

5. The House reserved its opinion on regulation 4(3). Lord Hope and Lord Clyde considered that the defect concerned the ladder's design and lack of fixing, rather than use of otherwise suitable equipment for an unsuitable operation or under unsuitable conditions.

6. There was a legal basis for contributory negligence because the pursuer knew that the ladders were frequently removed and replaced and failed to check the ladder before placing his weight upon it. The House did not disturb the Extra Division's factual apportionment of 50%. The pursuer was entitled to 50% of the assessed damages.

• House of Lords: Allowed the pursuer's appeal and altered the Extra Division's interlocutor. The employers had breached regulations 4(1) and 20 of the Provision and Use of Work Equipment Regulations 1998, but the pursuer was 50% contributorily negligent: [2006] UKHL 56.

• Extra Division, Court of Session: Altered the Sheriff's finding of wholly contributory negligence to 50%, but otherwise refused the pursuer's appeal: 2005 SLT 523; [2005] ScotCS CSIH_28.

• Sheriff Court, Aberdeen: Held that the employers were not in breach of the Regulations and that the accident was wholly caused by the pursuer's fault.