Robb Appellant Against Salamis (M & I) Ltd (Formerly Known as Salamis Marine & Industrialltd) Respondents
| Jurisdiction | England & Wales |
| Judge | LORD SCOTT OF FOSCOTE,LORD CARSWELL,LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY,LORD CLYDE |
| Judgment Date | 13 December 2006 |
| Neutral Citation | [2006] UKHL 56 |
| Docket Number | No 4 |
| Date | 13 December 2006 |
| Court | House of Lords |
[2006] UKHL 56
HOUSE OF LORDS
Appellate Committee
Lord Hope of Craighead
Lord Clyde
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Carswell
Appellants:
Angus Stewart QC
Jan McCall
(Instructed by Drummond Miller WS)
Respondents:
Ralph Smith QC
Nick Gardiner
(Instructed by Simpson and Marwick WS)
My Lords,
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").
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.
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
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.
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.
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."
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.
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.
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
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.
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...
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