Robb v. Salamis (M & I) Limited (Scotland)

The House of Lords held that the employer breached regulations 4(1) and 20 of the Provision and Use of Work Equipment Regulations 1998 by providing removable suspended ladders which, in ordinary use, could be replaced insecurely and so expose workers to a reasonably foreseeable risk of injury. Regulation 4(4)'s test of suitability is to be applied by reference to what is reasonably foreseeable to affect health and safety, and the word "necessary" in regulation 20 is to be construed on the same basis. The employer must, by means of a proper risk assessment, anticipate the contingency of carelessness by workers and take simple reasonably practicable steps to eliminate foreseeable risks.

On the facts the House concluded that the ladders were unsuitable because they could be replaced insecurely and that stabilisation by clamping or screwing was necessary; the defenders were therefore in breach of regulations 4(1) and 20. The Extra Division's reduction of the pursuer's contributory fault to 50% was upheld.

The court left open the application of regulation 4(3) on these facts.

The appellant (the pursuer) brought a personal injury claim against his employers after he fell when a removable ladder providing access to a top bunk on an offshore platform became dislodged. He alleged breach of the Provision and Use of Work Equipment Regulations 1998, principally regulations 4 and 20. The Sheriff dismissed the claim, finding no breach and holding the pursuer wholly to blame. The Inner House (Extra Division) accepted that the pursuer was "at work" and that the ladder was "work equipment" but refused the appeal on breach while finding 50% contributory negligence. The appellant appealed to the House of Lords on points of law only under section 32(5) of the Court of Session Act 1988.

The issues before the House were (i) whether the defenders breached their statutory duty under regulations 4 and 20, and (ii) whether there was a sound basis in law for the sheriff's finding of contributory negligence. The Lords considered the domestic regulations in the context of the Framework Directive and the Work Equipment Directive and emphasised that regulation 4(4) requires suitability to be judged by reference to what is reasonably foreseeable to affect health and safety and that regulation 20's requirement that equipment be stabilised where "necessary" is to be read the same way.

The court reasoned that an employer's risk assessment must take account of the contingency of carelessness by workers and the frequency with which such carelessness might occur. The suspended ladders were removable and frequently removed and replaced; a person replacing a ladder might not engage it properly and a fall from an insecure ladder was a reasonably foreseeable risk. A simple, inexpensive remedial measure (drilling and screwing the ladders) had in fact been taken after the accident and would have eliminated the risk. The House therefore allowed the appeal, held that regulations 4(1) and 20 had been breached and that the breach caused the accident, and confirmed that contributory negligence was 50%.

Nature of the claim: damages for personal injury for breach of regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998. Issues framed: statutory construction of regulations 4 and 20 (including the meaning of "suitable" and "necessary"), the relevance of risk assessment and foreseeability, and contributory negligence. Reasoning: interpret the Regulations in light of the Directives; apply an objective foreseeability test which requires the employer to anticipate careless misuse and to take reasonably practicable steps to eliminate the risk; conclude breach and causal responsibility subject to 50% contributory negligence. The court did not finally decide the application of regulation 4(3).

Appeal allowed. The House held that on the sheriff's findings the removable suspended ladders were not "suitable" within regulation 4(1) because it was reasonably foreseeable that they might be replaced insecurely and cause injury, and that stabilisation under regulation 20 was therefore necessary. The accident was caused by breaches of regulations 4(1) and 20; contributory negligence was fixed at 50% and damages were apportioned accordingly. The court left regulation 4(3) undecided on these facts.

Sheriff Court (Sheriff D J Cusine) — interlocutor 16 October 2003: claim dismissed, pursuer found wholly at fault. Inner House, Extra Division (Lord Penrose, Lady Cosgrove and Lord Reed) — interlocutor 16 March 2005, 2005 SLT 523: altered contributory negligence to 50% but refused the appeal on breach. Appeal to House of Lords under section 32(5) of the Court of Session Act 1988 — [2006] UKHL 56 (13 December 2006).