Robb v Salamis - Foreseeing the unforeseeable
Robb v Salamis - Foreseeing the unforeseeable
IntroductionThe House of Lords considered the Provision and Use of Work Equipment Regulations 1998 for the first time in Robb v. Salamis (M&I) Ltd [2006] UKHL 56 last December.
Their Lordships have widened considerably the reach of the suitability standard, namely the obligation imposed on employers to provide ‘suitable’ work equipment in Regulation 4 PUWER.
It is likely that their conclusions will have a far wider import than PUWER and may well affect the construction of other health and safety legislation.
Regulation 4 PUWER
Regulation 4 PUWER requires the employer to ensure that:-
• Work equipment is constructed or adapted to be suitable for the purpose for which it is used or provided (Reg 4(1).
• When selecting work equipment, a risk assessment of the premises, undertaking and use of work equipment must be carried out (Reg 4(2)).
• Work equipment must be used for suitable operations and under suitable conditions (Reg 4(3)).
The word ‘suitable’ is defined in Regulation 4(4)(a) as ‘suitable in any respect for which it is reasonably foreseeable will affect the health and safety of any person’.
Regulation 20 PUWER imposes the additional obligation on the employer to ensure that work equipment or any part of it is stabilised by clamping or otherwise where necessary for health and safety purposes.
The Decision in Robb
Mr Robb was employed by Salamis (M&I) Limited as a scaffolder on board an oil and gas platform off the coast of Scotland. Mr Robb sustained injury when, as he went to descend a ladder from the top bunk of his cabin, it gave way and he fell five feet to the floor.
The ladders were fitted into a retaining bar which was screwed to wooden bars running along the length of the top and bottom of the bunks. Neither the ladder nor its mountings were in any way defective.
It was found as a fact by the sheriff at first instance that the ladders were removable and they were routinely removed and replaced. Further, some 9 months after the accident, the owners of the platform adapted all the ladders by fixing them to the bunks with metal screws.
The sheriff did not find that the employers had breached Regulation 4. It was not reasonably foreseeable that the ladders might be incorrectly positioned or not fully engaged in their retainers. There was no evidence of any previous accidents.
This approach reflects that taken by the Court of Appeal in Griffiths v. Vauxhall Motors [2003] EWCA Civ 412. Regulation 4 is concerned with the physical condition of the equipment and on the assumption that it was being properly operated by trained and instructed personnel. Work equipment is not to be regarded as unsuitable when injury results from inadequate control or mishandling of the equipment which would otherwise have been safe for use.
On appeal, the Extra Division upheld the decision at first instance on reasonable foreseeability.
The House of Lords unanimously allowed Mr Robb’s appeal, with the leading judgment given by Lord Hope.
Their Lordships held that reasonable foreseeability was the key ingredient in the definition of ‘suitable’ in Regulation 4(4)(a). They also approved Horton v. Tomplin Contracts [2003] ICR 179 to the effect that a step is only realistically ‘necessary’ within the meaning of Regulation 20 when the risk to be guarded against can be reasonably foreseeable.
Their Lordships went on to construe the requirement of reasonable foreseeability widely. When an employer is assessing risks to which his employees may be exposed to when using equipment that he provides for them to work with, he must not only consider the skilled and careful man who never relaxes his vigilance but also the ‘contingency of carelessness’- namely those employees who act carelessly or inattentively. Lord Rogers justified this wider approach on the basis that it was necessary to give effect to the broad protection which the Regulations intended to provide.
On the facts, the ladder was not suitable for the purpose because a person replacing it might not replace it properly due to carelessness and a fall from a ladder which had not been replaced properly was likely to cause injury. Lord Hope held that what was required to avoid the risk of injury was screwing the ladder to the side of the bunk, as was done after the accident.
Where does that leave the Court of Appeal’s decision in Griffiths? Lord Hope considered that the problem of careless and inattentive employees was best dealt with by contributory negligence rather than breach of duty.
The message in Robb is clear: employers must take into account not only the health and safety risks posed by the conscientious skilled worker but also risks posed by the careless or inattentive worker.
Impact on Defendants
Robb brings little comfort to Defendants. Employers are advised to allow for carelessness and inattentiveness when carrying out risk assessments. Indeed, this will not always be an easy task and will require a great deal of lateral thinking around the risk. Practitioners are well advised to plead fully and actively pursue allegations of contributory negligence when faced with the careless and inattentive Claimant.
A further warning shot was fired across the bows by Lord Clyde. The Framework Directive imposes liability subject to an exclusion for employers and does not present any additional hurdle for employees. Lord Clyde wondered whether the aims of the Framework and Work Equipment Directive would be better implemented if the onus of establishing reasonable foreseeability was on the Defendant.
Those comments were clearly obiter dicta because, those points were not taken on the appeal. However, Lord Clyde’s dicta surely pave the way for further expansion of liability in this area.