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Robb v. Salamis (M & I) Ltd [2005] ScotCS CSIH_28 (16 March 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Penrose

Lady Cosgrove

Lord Reed

[2005CSIH28]

XA138/03

OPINION OF THE COURT

delivered by LORD PENROSE

APPEAL

From the Sheriffdom of Grampian, Highland and Islands at Aberdeen

ROBERT ROBB

Pursuer and Appellant;

against

SALAMIS (M & I) LIMITED

Defenders and Respondents:

_______

Act: Stewart, Q.C., Miss McCall; Drummond Miller, W.S.

Alt: R.A. Smith, Q.C., Gardiner; Simpson & Marwick, W.S.

16 March 2005

[1] The pursuer and appellant was injured on 6 September 1999 aboard the semi-submersible production platform Buchan Alpha. The platform was owned by Talisman Energy (UK) Ltd. At the time of the accident the platform was stationary in the Moray Firth about five miles off-shore from Burghead. It was being trimmed and ballasted in preparation for onward transit to the Buchan Field where it was normally situated for use in the extraction of oil and gas. The Buchan Field is located on the continental shelf in the British sector of the North Sea. At all material times the platform was within, and was intended to operate within, British territorial waters.

[2] Before the incident in which the appellant was injured, the platform had been, for some time, in the Cromarty Firth at Invergordon for re-fitting, repair and maintenance. The appellant joined the platform at Invergordon on 27 August 1999 as a scaffolder. On taking up his position, he became subject to the off-shore regime which required him to remain continuously on the platform. He was allocated a cabin, designated for his use by platform administrative staff. At the material time the appellant's designated cabin was equipped with bunk beds, on two levels, in a single unit of four beds located along one side of the cabin. The appellant occupied one of the upper beds.

[3] A ladder was provided for access to and from the upper beds. At the material time, it was located near to the middle of the unit, close to the dividing panel that separated the beds at each level, and on the side of the unit occupied by the appellant. The ladder did not rest on the cabin floor. It was designed to be suspended clear of the floor by two horizontal metal plates located on the back of the ladder which were designed to fit into J-section metal brackets attached to wooden bars that formed part of the structure of the bunks. At the material time, there was no other form of mechanical fixing between the ladders and the bunks. In particular there were no screws or bolts to secure the components of the support arrangement to each other or to the bunks. When properly engaged the plates fitted neatly and securely into the brackets fitted to the bunks. The ladders were removable and were frequently removed and replaced by individuals occupying the cabins and by stewards engaged in cleaning and tidying the accommodation. The sheriff found in fact that when the ladders were being replaced they might not be replaced properly within the J-section brackets

[4] After the accident to the appellant, Talisman drilled holes through the metal plates and brackets and attached the ladders to the bunks by screws driven through both metal elements into the horizontal wooden bars.

[5] The appellant was working night-shift. He came off duty at 07.00 on 6 September. After some time he went to bed. He got access to the upper bunk bed by standing on a chair, which was not an uncommon practice. At about 16.30 that afternoon the appellant made to descend from the bed by using the ladder. It appeared that he put his left hand on the wooden bar of the bunk, swung round so that his back was towards the bulkhead of the cabin, extended his right leg out and down towards the ladder, and placed his foot on the top rail. He did not check whether the ladder was properly engaged in the brackets. It appears that he moved his body outwards and began to lower his left foot. When he put his full weight on the ladder with his right foot it gave way and he fell to the floor, a distance of about five feet, striking an open drawer as he fell. The trim of the vessel at the material time was down by the head, causing the drawer to fall open. The sheriff found that the ladder could not have been fully engaged in the metal retainers. If it had been so engaged, it would not have become dislodged and would not have fallen when the appellant used it.

[6] The appellant blamed the defenders and respondents, his employers, for the accident on the basis that they were in breach of their obligations under regulations 4, 5 and 20 of the Provision and Use of Work Equipment Regulations 1998 (the 'Work Equipment Regulations 1998').

The sheriff assoilzied the respondents. The basis on which he held that the respondents were not liable in damages to the appellant is conveniently summarised in his findings in fact and law:

"(1) That on 6 September 1999, the Buchan Alpha platform was situated at a location in the Moray Firth which is within the territorial waters of the United Kingdom for the purposes of the application of the Provision and Use of Work Equipment Regulations 1998;

(2) That, at the time when the accident took place, the pursuer was not 'at work' within the meaning of the said Regulations;

(3) That the ladder and its metal retainers did not constitute 'work equipment' within the meaning of the said Regulations;

(4) That the defenders did not fail to ensure that the said ladder and its metal retainers were so constructed or adapted as to be suitable for the purpose for which they were constructed;

(5) That the defenders did not fail to ensure that the ladders and the metal retainers were used only under conditions for which they were suitable;

(6) That the defenders did not fail to ensure that the ladders and the metal retainers were stabilized by clamping or otherwise where necessary for the purposes of health and safety;

(7) That the accident to the pursuer on 6 September 1999 was not caused by the defenders' breach of statutory duty in terms of the Provision and Use of Work Equipment Regulations 1998 Regs. 4 (1), (2) (sic) and 20.

(8) That the accident was caused wholly by the fault on the part of the pursuer."

[7] In this appeal, the appellant submitted that the sheriff erred in making the second and third of these findings in fact and law because he misconstrued the two expressions 'at work' and 'work equipment' as they were used in the Regulations. Before the sheriff, the appellant's contention that he was 'at work' at the material time was presented as a question of construction of section 52 (1) of the Health and Safety at Work Etc. Act 1974, which provided:

"(1) For the purposes of this Part -

(b) an employee is at work throughout the time when he is in the course of

his employment, but not otherwise,

and, ... the expressions 'work' and 'at work', in whatever context, shall be construed accordingly."

The issue, as developed before the sheriff, was whether the ladder and its brackets were provided for the appellant's use 'in the course of his employment'. That issue was dealt with incidentally in the appeal rather than as the central plank of the appellant's case. The case was developed on an altogether different basis, that was not presented to the sheriff in any form. In the circumstances it is unnecessary to analyse the sheriff's reasoning on these issues in any detail.

[8] Before us the question whether the appellant was 'at work' at the material time turned on the interpretation and application of article 16 of the Management of Health and Safety at Work Regulations 1992 ('the Management Regulations 1992'). Those Regulations were dis-applied in relation to sea-going ships, their masters and crew, and the employers of such persons in respect of normal sea-going activities. Subject to that exception, regulation 16 provided:

"(1) These Regulations shall, .., apply to and in relation to the premises and activities outside Great Britain to which sections 1 to 59 and 80 to 82 of the Health and Safety at Work Etc Act 1974 apply by virtue of the Health and Safety at Work Etc Act 1974 (Application Outside Great Britain) Order 1989 as they apply within Great Britain.

(2) For the purposes of Part I of the 1974 Act, the meaning of 'at work' shall be extended so that an employee or a self-employed person shall be treated as being at work throughout the time that he is present at the premises to and in relation to which these Regulations apply by virtue of paragraph (1); and, in that connection, these Regulations shall have effect subject to the extension effected by this paragraph."

[9] It was agreed that at the material time the platform was within the scope of the Regulations.

[10] For the appellant counsel argued, in summary, that regulation 16 applied to an employee in the appellant's position and had the effect that such an individual was 'at work' at all times when he was on an off-shore installation, such as the Buchan Alpha, in territorial waters, either at a production site or in transit to a work site. For the respondents, counsel argued, in summary, that regulation 16 (2) restricted the extended definition of 'at work' to the Management Regulations 1992, and that the extended definition was not applicable to the Work Equipment Regulations 1998.

[11] Counsel for the appellant sought support for their interpretation from an analysis of the historical development of Health and Safety at Work Regulations as applied to off-shore installations, and from the wider context provided by related Regulations. It is appropriate to set out that material, taking account of the competing positions adopted by counsel.

[12] The expression 'offshore installation' was defined in the 1974 Act, section 53 (1), as 'any installation which is intended for underwater exploitation of mineral resources or exploration with a view to such exploitation'. Such installations were included in the definition of 'premises' for the purposes of the Act.

[13] So far as relevant to offshore installations, the earliest Regulations made under the Act to which counsel made reference were the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 (the 'Offshore Installations Regulations 1976'). In those Regulations the focus for regulation of off-shore safety was the workplace, and the responsibility for compliance rested generally on the installation manager, on the owner of the installation and on the concession owner. So far as employers were concerned, there was an obligation to ensure that employees complied with the relevant provisions of the Regulations. But there was no obligation to ensure compliance with the operational duties imposed by the Regulations, and in particular those contained in Part II. However, among the obligations imposed on responsible persons which had importance as argument developed were regulations 10, 12 and 14. Regulation 10 provided that all equipment of an offshore installation was to be "of good construction, sound material, adequate strength and free from patent defect and suitable for any purpose for which it is used". Regulation 12 provided for the effective guarding of dangerous machinery or apparatus. Regulation 14 provided for general safety, and, in particular, provided that 'every ladder shall be so fixed that the stiles or sides of the ladder are evenly supported or suspended and so secured as to prevent slipping".

[14] Counsel for the appellant drew attention to the decision of the sheriff in Lawrence v Amec Process and Energy Limited in which the sheriff held that the owners and operators of an offshore installation were liable to an individual injured when attempting to descend from a top bunk by a ladder which shot away from under him, causing him to fall. The case was said to illustrate the scope of the protection provided to individuals employed on offshore installations, under the 1976 Regulations, albeit liability was imposed on the installation owner and operator. The appellant's employers in that case were assoilzied.

[15] It was not suggested by counsel for the respondents that Lawrence was wrongly decided under the 1976 Regulations. For the limited purpose of illustrating the view taken of the scope of protection against danger from ineffective support of ladders that was afforded to employees at work on offshore installations under those Regulations the case has some value. However, the validity of the decision depends on issues of construction that lie at the heart of the present dispute.

[16] The importance of the Offshore Installations Regulations 1976, in our view, is that clear provision was made for the protection of people employed on offshore installations against risks associated with equipment on the installation and in particular that regulations 10 and 14 provided protection against risks related to the suitability of "all equipment" for any purpose for which it is used, and to ladders "at all times" and "all places on the installation".

[17] Council Directive 89/391/EEC ('the Framework Directive') on the introduction of measures to encourage improvements in the safety and health of workers at work, dated 12 June 1989, provided the framework for a series of new Regulations in the United Kingdom, first promulgated in 1992. Two of the recitals in the preamble of the Directive are relevant to the approach to construction of the domestic Regulations:

"Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers;

Whereas this Directive does not justify any reduction in levels of protection already achieved in individual Member States, the Member States being committed, under the Treaty, to encouraging improvements in conditions in this area and to harmonizing conditions while maintaining the improvements made."

[18] The general provisions in Article 1 set out the objective, and general scope of the Directive, and at 1.3 gave formal expression to the second of the recitals quoted:

"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."

The Directive did not apply to the police, for example, where the characteristics of the activity inevitably conflicted with its objectives, but otherwise defined 'worker' and 'employer' in comprehensive terms. Article 4 obliged Member States to take the necessary steps to ensure that employers and workers, among others, were subject to the legal provisions necessary for the implementation of the Directive. Article 5.1 provided:

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

[19] Article 5.4 allowed for the exclusion or limitation of the employer's responsibility where occurrences were due to unusual and unforeseeable circumstances, among other grounds of exclusion or limitation. Article 6 set out the general obligations imposed on employers, and, in particular, provided:

"1. Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means. ...

2. The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention:

avoiding risks;
evaluating the risks which cannot be avoided;
combating the risks at source; ...

replacing the dangerous by the non-dangerous or the less dangerous; ...

giving appropriate instructions to the workers."

[20] In contrast to the Offshore Installations Regulations 1976, the Framework Directive focused obligation on the employers of workers.

[21] Article 16 of the Framework Directive provided for the adoption of individual directives in specified areas. Council Directive 89/655/EEC dated 30 November 1989 (the 'Work Equipment Directive') laid down minimum safety and health requirements for the use of work equipment. Employers' general obligations were set out in Article 3 as follows:

"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. .....

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 minimise the risks."

[22] Article 4a, as amended by Council Directive 95/63/EEC dated 5 December 1995, imposed on employers specific obligations of inspection on initial installation of equipment and, in certain circumstances, later periodical inspections, where the safety of work equipment depended on installation conditions.

[23] Annex I to the Work Equipment Directive provided for the imposition of wide-ranging obligations on employers. Most of these related to power-driven equipment and required control devices and systems designed to eliminate or limit risk. The appellant relied in argument on paragraph 2.6 of the Annex which provided:

"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."

[24] To comply with the requirements of the Framework Directive and its "daughter" directives, including the Work Equipment Directive, the Secretary of State, acting under the 1974 Act, made a series of Regulations in 1992. These comprised the Management Regulations 1992; the Provision and Use of Work Equipment Regulations 1992; the Manual Handling Operations Regulations 1992; the Personal Protective Equipment at Work Regulations 1992; the Health and Safety (Display Screen Equipment) Regulations 1992; and the Workplace (Health, Safety and Welfare) Regulations 1992.

[25] With the exception of the Workplace (Health, Safety and Welfare) Regulations 1992, the 1992 Regulations each contained provision extending their application outside Great Britain, except in the case of sea-going ships. The first major issue between parties in the appeal related to these extension provisions, and can best be focused by comparing the provisions of the Management Regulations 1992 and the Provision and Use of Work Equipment Regulations 1992.

[26] The terms of Regulation 16 of the Management Regulations 1992 have been narrated. Article 26 of the Provision and Use of Work Equipment Regulations 1992 provided, subject to the exclusion of sea-going ships and their crews:

"These Regulations shall, ..., apply to and in relation to the premises and activities outside Great Britain to which section 1 to 59 and 80 to 82 of the 1974 Act apply by virtue of the Health and Safety at Work Etc Act 1974 (Application Outside Great Britain) Order 1989 as they apply within Great Britain."

[27] The provision replicated the terms of regulation 16 (1) of the Management Regulations 1992. The Health and Safety at Work Etc Act 1974 (Application Outside Great Britain) Order 1989 extended the relevant provisions of the 1974 Act to offshore installations, such as the Buchan Alpha platform, engaged in relevant activities on or in transit to designated areas of the continental shelf. There was no dispute that at the material time the Regulations applied to the platform. What was in dispute was whether the extended definition of the expression 'at work' in regulation 16 (2) was restricted in its application to the Management Regulations 1992, or applied generally where the 1992 regulations extended the relevant provisions of the 1974 Act to offshore installations, and in particular whether it applied to the Provision and Use of Work Equipment Regulations 1992, and the Regulations that superseded them and applied at the date of the appellant's accident.

[28] For the appellant it was argued that the extended meaning applied generally, and in particular to the Provision and Use of Work Equipment Regulations, for five reasons:

So to interpret and apply Regulation 16 (2) was compatible with, and involved no inconsistency with, the context of the health and safety provisions as a whole;
It was the plain meaning of the provision;
Otherwise the scheme of the Management Regulations 1992 would be substantially ineffective;
Otherwise offshore workers would be deprived of evidently important forms of statutory protection that were previously available;
To construe the instrument otherwise would be contrary to the rule in Garland v British Rail Engineering Limited.

[29] In relation to the first proposition, counsel submitted that one had to have regard to the statutory framework, and the factual context. When one had regard to an employed person being 'at work' in relation to the 1974 Act, it was necessary to envisage a person being in the course of his employment. It was not necessary to envisage the person actually performing work tasks. It did no violence to the scheme of the provisions to include off duty periods in the scope of the expression 'in the course of employment'. An employee might be under the direction and control of his employer and required to accept and act on instructions when otherwise off duty. That would be in the course of his employment even though the action instructed was not part of the job he was employed to do.

[30] In expanding on the second reason, counsel submitted that the language of regulation 16 could not be clearer in its generality. It reflected exactly the empowering provisions of the 1974 Act. At most the final phrase of regulation 16 (2) might be regarded as otiose. But the addition of the phrase did not import any ambiguity into the provision read as a whole. The extension of the meaning of 'at work' for the purposes of the 1974 Act effected an extension of the meaning of the expression for all subordinate legislation made under the Act in the absence of express qualification.

[31] The third proposition was that without a general extension, the framework scheme would be substantially ineffectual. The Framework Directive defined the employer's general obligations to avoid risk, to evaluate risks that could not be avoided, and to instruct and train employees. There was no dispute that the Regulations could be read as including a reference to the employer at all times at which the Regulations applied to him. If the respondents' argument were correct, the employer would be obliged, for example, to carry out a risk assessment in terms of regulation 3, but would have no related obligation to address the risks identified, or to train or instruct employees to deal with the risks.

[32] Fourthly, regulation 27 of and part I of schedule 2 to the Provision and Use of Work Equipment Regulations 1992 repealed provisions of the Offshore Installations Regulations 1976 that had previously provided protection for employees. In particular regulations 10 and 12 of the 1976 Regulations were repealed. It would be contrary to the express terms of the recitals and introductory articles of the Framework Directive for the domestic Regulations to be interpreted so as to remove specific forms of protection that had previously been available to employees under the 1976 Regulations. Counsel observed that in other respects the 1976 Regulations remained in force until the Offshore Installations and Wells (Design and Construction etc.) Regulations 1996 replaced them in implementing the Workplace Directive. Those Regulations imposed duties on the owner and operator, as duty holder, while the installation was in use. They did not contain a provision equivalent to regulation 14 of the 1976 Regulations.

[33] Fifthly, it was submitted that the respondents' interpretation would be contrary to the rule in Garland, as set out by Lord Diplock. The construction for which the respondents contended would put the United Kingdom in a position in which the domestic regime was inconsistent with the Directive because when the Management and Work Equipment Regulations were read together there would be repeal without substitution of forms of protection previously extended to employees. Protections that had already been achieved would have been abandoned.

[34] For the respondents, three principal arguments were advanced in support of the proposition that regulation 16 (2) of the Management Regulations 1992 applied solely for the purposes of those Regulations:

The paragraph was in two distinct parts. The first was general in terms and capable of extending the meaning generally. The second, in the final phrase, tied the expanded definition exclusively to the Management Regulations themselves.
The interpretation contended for by the appellant would have the effect of extending the meaning of 'at work' in the 1974 Act. If that had been intended, Parliament would have made the amendment by primary legislation.
The provision was, at best, ambiguous. The explanatory note was relevant to a sound interpretation of the provision, and it supported the appellant in their approach.

[35] In relation to the first proposition, it was argued that the provision was clearly in two parts, and that the language reflected the intention. Counsel referred to Benyon on Statutory Interpretation, 4^th edition, for the linguistic canons of construction. The present issue fell within the ambit of the first principle: it was necessary to construe the entire instrument in context. The Regulations implemented the Framework Directive, which envisaged provisions of general application, and provisions of specific application. The Management Regulations were in implement of the general framework directions, and assumed that specific provision would be made for particular application to identified topics, such as work equipment. One would expect words of extension to be provided or not as thought appropriate to the specific needs of work equipment, for example.

[36] In support of the second proposition, it was submitted that the Police Act 1997 illustrated the approach that would have been adopted had Parliament intended to amend the principal Act. Further, it was submitted that later regulations contained specific extensions that were inconsistent with the view that a general extension had already been made by the Management Regulations. Reference was made to regulation 4 of the Offshore Installations and Pipeline Works (First Aid) Regulations 1989 where there was an express extension of the expression 'at work' that would be otiose if the submissions for the appellant were accepted.

[37] Further, counsel submitted that it was significant that the Management Regulations 1992 did not extend civil liability. It would be strange if the Regulations had indirectly the effect of increasing the employer's liabilities inferentially. That result would not sit well with the specific provision excluding the imposition of civil liability. In relation to the Directives, these provisions followed almost directly the requirements of the Framework Directive. The Provision and Use of Work Equipment Regulations 1992 followed the requirements of the Work Equipment Directive, and should be read in that context. It would be a tortuous way of extending civil liability. Further it would be contrary to the general rule that an extension of civil liability required clear and explicit provision.

[38] Counsel observed that the meaning proposed for regulation 16 (2) would sit ill with the terms of regulation 4 (1) of the Provision and Use of Work Equipment Regulations 1992. That provision imposed obligations on an employer in respect of work equipment used by an employee who was "at work or .. on an offshore installation..". If the appellant were correct, the alternative could have no meaning: an employee on an offshore installation would be 'at work' at all times.

[39] The third proposition proceeded on the view that regulation 16 (2) was, at best ambiguous. On that basis it was permissible to look to the terms of the explanatory note to the Regulations: Coventry & Solihull Waste Disposal Co Ltd. v Russell. Note 17 (b) made it clear that the scope of regulation 16 (2) was restricted to the Management Regulations 1992.

[40] In response to these submissions, counsel for the appellant submitted:

The provision for police officers in Health and Safety legislation reflected the view that police officers were office-holders, not employees. Special treatment of police officers was not relevant to the issue in this case.
There was no ambiguity in regulation 16 (2). There was no need to have recourse to the explanatory note. In any event it did not assist the appellant.

[41] In our opinion, the approach to the interpretation and application of the 1992 Regulations for which the appellant contended is to be preferred. In the first place, and in contrast to the respondents' approach, that interpretation is consistent with due implement by the United Kingdom of its treaty obligations. The repeal of regulations 10 and 12 of the Offshore Installations Regulations 1976 would have deprived offshore employees of important safeguards in respect of health and safety if the Provision and Use of Work Equipment Regulations 1992 did not apply in terms of the extended definition. That would have been a result that was contrary to the obligation of the United Kingdom to implement the Framework Directive without derogation from established forms of protection. It would also involve adopting an interpretation that implied breach of treaty obligations, and as such would be contrary to Garland v British Rail Engineering Limited. The respondents did not answer the appellant's submissions directly. But it should be noted that there are possible inconsistencies in the scheme resulting from the 1992 Regulations. Regulation 14 of the 1976 Regulations was not repealed, while regulations 10 and 12 were, at least raising a question as to the overall intention of Parliament. If the sheriff's decision in Lawrence was correct, the protection available to an employee in the position of the appellant was not wholly removed. However, the repeal of regulations 10 and 12 would have removed important protections. Avoiding that result is a material factor favouring the appellant's approach.

[42] The view that regulation 16 (2) has general application does involve acknowledging a measure of redundancy in some of the Regulations. But that is preferable to a construction that would imply breach by the United Kingdom of its treaty obligations and a repudiation of a specific requirement of the Framework Directive.

[43] On a more general approach, it is clear that section 52 (1) (b) of the 1974 Act itself gave a meaning to the expression 'at work' generally, that distinguished it from 'carrying on work operations', when it provided that a person was 'at work throughout the time when he is in the course of his employment'. The first obvious implication of the definition is that an employee does not have to be working to be at work. Many work activities are intermittent, combining periods of active engagement with the object of the work activity and periods of inactivity. Typically where manufacturing activities involve the sequential contributions of individuals with differing skills the completion of one skill may be required before the next in the sequence can be engaged. Further, many forms of employment involve travel between periods of work, when the employee will nevertheless be under the direction and control of his employer. In some forms of shift work employees may be required to remain on the premises. The requirements of operations on offshore installations are particular. The employee could not leave the platform or other installation without the intervention of the employer, or some other participant in the offshore operation, who had the responsibility of providing transport to shore. Control of the pattern of attendance at the installation is a normal and intelligible aspect of the employer-employee relationship. The Regulations reflect that reality. It would make no practical sense to distinguish the employer's responsibilities depending on whether the employee was actively engaged on the work operations for which he was primarily employed. On the contrary, excluding the employer's liability in respect of off-duty periods would expose the employee to difficulties of identifying the responsible person in the event of an accident in a context in which the allocation of contractual obligations among the participators in the enterprise may be dictated by purely financial considerations that have little or no relationship with any logical division of the off-shore activity.

[44] The appellant's third proposition is less persuasive. The risk assessment required by regulation 3 of the Management Regulations is frequently relied on in litigation as instructing the scope of the employer's common law duties. While regulation 15 provides that breach of a duty imposed by the Regulations does not confer a right of action in any civil proceedings, breach may have direct consequences for the employer. The preparation of risk assessments would remain an obligation of real and substantial content whether or not there were related obligations to address the risks identified. The competing submissions on linguistic analysis were equally unimpressive. The language of the Regulations as a whole is tortuous, and often unclear. But, construed in the light of treaty obligations it is not, in our view, ambiguous. There is no justification for enlisting the explanatory note as an aid to construction.

[45] So far as the respondents' other submissions are concerned, the special treatment of police officers is not helpful. Article 2 of the Framework Directive shows that it may be necessary to treat police officers as a special class. The extension of employers' liabilities was the objective set out in the Directives. And the submission based on regulation 4 (1) of the Provision and Use of Work Equipment Regulations 1992 had lost any force by the time of the accident. The 1992 Regulations were repealed and replaced by the Work Equipment Regulations 1998, which applied at the material time. In regulation 3 of the 1998 Regulations, 'Application', it was provided that:

"The requirements imposed by these Regulations on an employer in respect of work equipment shall apply to such equipment provided for use by or used by an employee of his at work."

The alternative reference to a person on an offshore installation was removed, and such force as there might have been in the respondents' argument on the precise terms of regulation 4 of the 1992 Regulations was removed with it.

[46] As at the date of the appellant's accident, therefore, in our opinion the appellant was 'at work' in terms of the Work Equipment Regulations 1998 when he was on board the platform in the course of his employment with the respondents.

[47] The second major issue arising on the interpretation of the Regulations was whether the ladder alone or the ladder together with its metal plates and brackets constituted 'work equipment' within the meaning of the Work Equipment Regulations 1998.

[48] For the appellant, counsel submitted that the issue was to be determined on a straightforward interpretation of regulation 2 (1). Work equipment was:

".. any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)."

"Use" in relation to work equipment meant:

".. any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning."

The use of a ladder to descend from a bunk was, quite simply, an activity involving apparatus for use during a period when the appellant was at work. A ladder had been held to be 'apparatus' in Brebner v British Coal Corporation.

[49] For the respondents, counsel submitted that the ladder was not 'work equipment' in relation to the appellant because it was not being used to carry out work such as scaffolding, welding or other operations of a kind that the appellant might be required to perform in the course of his work. The ambit of the provision was determined by the Regulations and was what could be described loosely as the tools of the trade: Hammond v Commissioner of Police. The Work Equipment Directive informed the interpretation. Article 2 provided definitions as follows:

"(a) 'work equipment': any machine, apparatus, tool or installation used at work;

(b) 'use of work equipment': any activity involving work equipment such as starting or stopping the equipment, its use, transport, repair, modification, maintenance and servicing, including, in particular, cleaning."

Those provisions identified the purpose of the domestic Regulations. Even if it were held that the appellant was at work, the ladder was not work equipment because he was not using it as a tool of the trade. Further, Article 3 in defining the general scope of the employer's duties related back to the definition provisions and defined the context for their interpretation. In particular, it obliged the employer to ensure that:

".. the work equipment made available to workers ... is suitable for the work to be carried out ..."

[50] The terms used supported the submission that the provision was directed at work operations such as would be carried out using the tools of the trade. Further support was sought from the opinion of Lord Abernethy in Kelly v First Engineering Ltd, where he said that the expression should be given its ordinary meaning. A ladder giving access to a bunk was not in use for work, as a tool of the appellant's trade, and was, in ordinary usage, not a piece of work equipment.

[51] In our view, the appellant's approach is again to be preferred. In Hammond, the Court of Appeal discussed the Provision and Use of Work Equipment Regulations 1992. But it would not be appropriate to distinguish the case on that basis. The observations on which the respondents rely are general in their terms, and could apply with equal force to the 1998 Regulations. However, there are two preliminary observations that have to be made about the case. In the first place it was not concerned with an offshore installation, and therefore the Court was not concerned with the extended meaning of the expression 'at work' that applies in the present case. In the second place, the observations made related to the need, in the particular context, to distinguish work equipment from the work piece on which work equipment was to be used. In the circumstances there was no scope for discussion of the meaning of the expression where there were no actual operations in hand. The latter factor is particularly relevant to the observations made about the case of Kelly.

[52] The claimant in Hammond was a mechanic. He was attempting to undo the wheel bolts on a wheel of a vehicle. He was using a knuckle bar and socket. The force developed by use of the bar and socket caused one of the bolts to shear. He was injured when, as a result, the tool lost the resistance of the bolt and fell. In that context the distinctions drawn by May LJ at page 1473, and Brook LJ at page 1475, are intelligible and appropriate. But May LJ made it clear that he used the expression 'tools of the trade' in a loose sense, and expressly acknowledged that there were plainly many things that might be work equipment which would not aptly be described as tools at all. The hoist he mentioned is a clear example. The respondents' submission applied the expression 'tools of the trade' restrictively. However, it became clear that the respondents could not resist the suggestion that a ladder, whether fixed or moveable, used to provide access to and egress from parts of the structure of the platform could be work equipment. On the approach adopted, a particular ladder would be within the scope of 'work equipment' if the employee was using it while carrying out operations on duty, but would be outwith the scope of the expression if the employee was using the ladder off duty, notwithstanding that he was at the time 'at work'.

[53] For present purposes, it is necessary to bear in mind the extended definition of the expression 'at work'. The Work Equipment Directive stipulates a minimum level of protection required for compliance with treaty obligations. The issue must turn on the domestic Regulations. Regulation 3 (2) imposes obligations on the employer in respect of equipment provided for use or used by an employee of his at work. On the plain language of the regulation, in the context of the extended meaning of the expression 'at work', we are of opinion that the ladder and its associated support system was 'work equipment'.

[54] We shall therefore sustain the appellant's first ground of appeal, and give effect to it by deleting Findings in Fact and Law numbers (2) and (3) from the sheriff's findings and substituting findings 2, 3 and 4 proposed by the appellant, subject to deletion of reference to the appellant's bunk, about which there was not full argument, to the following effect:

That at the time the accident took place the pursuer was on an offshore installation in terms of the Health and Safety at Work etc Act 1974 (Application outside Great Britain) Order 1995 (SI/1995/263);
That, at the time the accident took place, the pursuer was 'at work' within the meaning of the said Regulations; and
That the ladder and associated plates and brackets used by the pursuer on said installation on 6 September 1999 constituted 'work equipment' within the meaning of the said Regulations.

[55] It is unnecessary for the purposes of this case to express any view whether the bunk itself was 'work equipment'.

[56] For the appellant, it was next submitted that if the court sustained the first ground of appeal, the sheriff was bound to have found that the respondents were in breach of regulations 4 (1) and (3) and 20 of the Work Equipment Regulations 1998. Regulation 4 provides, so far as is material:

"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...

Every employer shall ensure that work equipment is used only for operations for which, ..., it is suitable.
In this Regulation "suitable" means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

Regulation 5 provides:

"Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

Regulation 20 provides:

"Every employer shall ensure that work equipment or any part of work equipment is stabilised by clamping or otherwise where necessary for the purposes of health or safety."

[57] The sheriff's findings in fact that are material to the application of these provisions are as follows:

"10. The top bunks were provided with access ladders which were constructed with a horizontal metal bar between the top and bottom rails. Each bar fitted into a metal retaining bar which was J-shaped and which was screwed to each of the wooden bars which ran along the length of the top and bottom bunks. When properly engaged, the top and bottom rails fitted neatly and securely into the horizontal metal retaining bar. There was no difficulty in either placing the ladders in the metal retainers, or removing them from those retainers. The defenders were not involved in the construction, or siting of the bunks, or the ladders.

11 The access ladders were situated at the foot of the bunks, each of which was fitted with two curtains which were designed to be drawn closed from the head and foot of each of the bunks.

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 known 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 been 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.

19. The ladder could not have been fully engaged in the metal retainers. If it had been so engaged, it would not have become dislodged and would not have fallen when the pursuer used it.

20. Within 9 months, following upon the accident, Talisman had adapted all the bunk ladders on board the Buchan Alpha. Holes were drilled through the horizontal metal bars on the ladders, through the J-shaped metal retainers, and the ladders were then secured with screws on to the wooden rails on the top and bottom bunks.

21. As a result of that adaptation, the ladders cannot now be moved, thus effectively eliminating the possibility of a ladder being removed and not being replaced properly.

22. The adaptation was a straightforward, simple and inexpensive operation. It would have been reasonably practicable to carry out this operation before the pursuer's accident."

[58] The appellant submitted that the sheriff was in error in making these findings in the terms he did. He submitted that they should be amended as follows:

[59] In Finding 10:

by deleting the first two sentences and substituting:

"The top bunks were provided with access ladders which were constructed with metal plates between the rails, one at the top and one at the bottom. The plates fitted into metal brackets, J-shaped in section, screwed to the wooden boards which ran along the length of the top and bottom bunks."

(b) in the third sentence by deleting "rails" and substituting "plates"; and by deleting "bar" and substituting "brackets".

By adding to Finding 12:

"No instructions were given to the pursuer about using the ladder."

In Finding 13, ..... by adding at the end:

"The equipment was not so constructed that the ladder could only be positioned with plates properly engaged in the brackets."

By adding to Finding 19:

"The risk of the ladder being removed and not being properly replaced with the consequential risk of the ladder slipping and causing injury when in use was something that should have been recognised by appropriate inspection and assessment before the accident, and these risks were reasonably foreseeable by the defenders. It should also have been recognised that the risk could be eliminated by the adaptation, which was carried out after the accident, whereby the equipment was secured by screws."

[60] There was extensive argument on the meaning and effect of the provisions, and on their application to the facts of this case, including discussion of the extent to which the findings in fact fell to be adjusted. For the appellant it was submitted, in summary:

(a) That the sheriff erred in finding that the defenders did not fail to ensure that the work equipment was suitable; that it was only used under conditions for which it was suitable; and that the accident was not caused by the defenders' breach of statutory duty in terms of regulations 4 (1) and (3) of the 1998 Regulations. He also erred in finding that the defenders did not fail to ensure that the work equipment was stabilised by clamping or otherwise; and that the accident was not caused by breach of regulation 20;

(b) The sheriff applied the wrong test for suitability in terms of regulation 4 (1); further he failed to address distinctly the pursuer's case in terms of regulation 4 (3); and had he done so he was bound to have found, subject to foreseeability, that there was a breach of regulation 4 (3);

(c) Further the sheriff misdirected himself on the question of foreseeability; he ought to have accepted as fact that there was a foreseeable possibility that the use of the equipment under the circumstances might affect the health and safety of someone, including the pursuer;

(d) Further the sheriff continued in error in respect of regulation 20 et separatim that the slippage of un-clamped equipment raises an almost irresistible inference of the necessity for clamping; and

(e) The sheriff misconstrued the Merchant Shipping (Crew Accommodation) Regulations 1978 et separatim had regard to irrelevant material in construing the 1988 regulations.

Each of these submissions was expanded in argument. In respect of paragraph (a), it was submitted that the sheriff had confused suitability with quality when he stated in his note:

"There was nothing in the evidence to suggest that either the ladder itself or the bunk beds had not been properly constructed and there was no evidence that either had been adapted. The only sense in which it could be said that they had not been suitably constructed is that the ladders might be removed but not be fully engaged in the metal retainers after they had been replaced. That is the only sense in which it could be argued that the work equipment was not being used for an operation for which it was suitable. The only sense in which the pursuer says that the equipment is not suitable was that the ladders were not clamped and that that is a breach of Regulation 20"

[61] It was said that that was an unusual way of putting the position, because evidence of suitability would have been stability. Suitability had regard not merely to the inherent characteristics of the equipment, but to purpose: it must be suitable for its purpose. Under reference to the Work Equipment Directive Article 3(1), and regulation 4(1) of the 1998 regulations, it was said that if the ladder was not stable when it was used it was unsuitable. Its unsuitability was constituted by the fact that it was not permanently fixed: it was not so constructed that it could only be used if the plate was located in the bracket.

[62] So far as regulation 4 (1) was concerned, if the ladder was not stable when it was used, the sheriff was bound to find that it was not suitable. There was an absolute duty to ensure that all foreseeable risks were eliminated.

[63] In expanding on paragraph (b), counsel submitted that the sheriff accepted that the ladder might be removed and not fully engaged. The inevitable conclusion was that the defenders did not ensure that this ladder was only used when it was securely attached to the side of the bunk. There was a risk that it would not be secured and in fact it was not secured.

[64] For the pursuer to succeed he merely had to prove that the use of the ladder carried a risk of injury. There was a risk that it would not be stable. The very fact that employees removed and replaced the ladder gave rise to a foreseeable risk that it would not be replaced properly.

[65] It was not for the pursuer to say what steps the defenders might or might not have taken, though regulation 20 might suggest a possibility. If there was a foreseeable risk of injury in the use of work equipment, the pursuer had proved that the defenders did not ensure that the equipment was used only under conditions for which it was suitable. That was a high standard, but that was what the regulations intended. It was irrelevant that the equipment could be used safely if there were a foreseeable risk of injury.

[66] The lack of evidence of previous accidents was not relevant to the question whether there was a risk of injury: if it were it would equate the regulatory test to a common law test. In this case there was a duty to assess the equipment to identify any risks. The evidence of Captain Hughes was unchallenged and there was no contrary evidence. He said that there was a foreseeable possibility that the ladder could be in an insecure position. Even at common law the carelessness of employees was foreseeable.

[67] There was a breach of regulation 4 (3) because the ladder was not suitable, in respect that it was reasonably foreseeable that it might be simply balanced on the brackets, top and bottom, rather than located in the brackets.

[68] The test was whether there was a foreseeable possibility of risk: Cullen v North Lanarkshire Council. That case illustrated a trend in cases related to the Manual Handling Regulations that required an element of foreseeability. In this case, the regulations specified reasonable foreseeability as a requirement. In respect of what was reasonably foreseeable, the question was an objective one. The words were not used in the regulations in a sense that can be compared with the common law concept of reasonable foreseeability. It was not akin to the common law idea, and the factors to be considered were not to be viewed in the common law sense. The expression must be interpreted in the light of the regulations and the need for a risk assessment.

[69] In relation to the Regulations, unlike the common law, the factors relating to the pursuer's accident were not necessarily conclusive. Foreseeability did not have to be limited to the experience of the defenders. Industry experience was not irrelevant. One had to envisage a reasonable person in the position of an employer having the duties imposed under these regulations and ask what they would reasonably perceive to be the risks to be taken into account in preparing a risk assessment. The environment, the operations, and the nature of the risks could be relevant in the assessment of the risks.

[70] The risk assessment identified the risks and what was reasonably foreseeable: if a risk assessment would have identified the risk, then it would be reasonably foreseeable to the employer. The test was whether a reasonable employer applying his mind to his statutory obligations would have identified that this ladder involved a risk.

[71] Griffiths v Vauxhall Motors Limited showed that the risk assessment was relevant to the identification of what a reasonable employer would have done. On the evidence before the sheriff, if a proper risk assessment had been done it would have identified the risk. The reasonable step might not be to eliminate the risk. It would have led to a way of dealing with the risk.

[72] The pursuer was faced with an unsafe ladder. If the people placing it did not do the job properly and that gave rise to a risk, the suitability of the equipment raised different issues from those in Griffiths. That case did not imply that the only or appropriate steps to be taken by the employer were in relation to the existing system. So, in this case, if employee had placed the ladder so that it was not secure, that did not necessarily imply that the employer's only duty was to instruct that employee to avoid creating that situation. There was also a duty to take steps to eliminate that risk, and if that was not possible to take steps to control the risk. And depending on the circumstances of each particular case, and the particular evidence led, the court would be able to judge what 'ensure' meant in the context of the risk.

[73] In connection with evidence of the risk there was available the evidence of Captain Hughes. Applying knowledge available at the time it was foreseeable that there was a risk of injury. The main thrust of that evidence went unchallenged, and uncontradicted, except in so far as he gave evidence about accidental dislodgement, when he considered that it was unlikely that the man on the top bunk could dislodge the ladder.

[74] Counsel moved the court to alter the findings as set out in the amended grounds of appeal.

[75] In relation to regulation 20, it was submitted that the reasoning of the sheriff was misdirected at page 59 of his note. The sheriff quoted from observations in Horton v Taplin Contracts Ltd dealing with regulation 5, not from the observations on regulation 20. It was conceded that that decision did show that reasonable foreseeability was a factor in the application of regulation 20, but the sheriff was in error in referring to the contrary view as being an affront to common sense: that observation related only to article 5. In regulation 20 the words 'reasonably foreseeable' were not used. If foreseeability was relevant in relation to regulation 20, then it was in the same sense as one found it arising in the context of the Manual Handling Regulations. The issue in the present case came back to the risk of injury. The slipping of the ladder raised an almost irresistible inference of risk

[76] The question became one of whether it was foreseeable that there was a risk that the ladder would be used when it was unstable. If so there was an obligation to stabilise it, by clamps or otherwise. The steps to be taken to stabilise portable ladders would depend on the risk. In the circumstances of the present case, the ladder could be permanently fixed. It did not follow that there could never be portable ladders. The risk here arose from the method of fixing that was used: it created a foreseeable risk of injury. The problem was that the ladder was not permanently fixed, and that it was unsuitable: that was the evidence of the expert. In the circumstances, nothing short of permanent fixing of the equipment would have sufficed to avoid the risk arising from the fact that different people might be taking the ladder off and on.

[77] On the terms of regulation 20, this ladder was unsuitable at the material time, and it was necessary that it be stabilised by clamping or otherwise.

[78] The sheriff recognised that the Merchant Shipping Regulations did not apply, but inferred from their terms that Parliament had cogent reasons for requiring portable ladders on ships. On that approach, one could equally say that Parliament must have had cogent reasons for not requiring portable ladders in the Work Equipment Regulations. The sheriff accepted that the precise situation on board ship might not be replicated on an offshore installation. There was no evidence that portable ladders on ships gave rise to similar problems as arose in the present case. Counsel accepted that the implication of the appellant's argument was that the ladders could comply with the Merchant Shipping requirements, but still give rise to risk, but it was observed that those Regulations expressly required that ladders be constructed to prevent slipping.

[79] The sheriff further considered emergency practice on board off shore installations: there were no findings in fact to support his reasoning. If the factors were to be relied on in argument, appropriate findings in fact should have been made.

[80] In summary, the court should amend the findings as proposed, and find the respondents liable for breach of the Regulations in terms of the grounds of appeal.

[81] Counsel for the respondents divided their submissions on these issues into two chapters:

1. Whether the ladder was suitable in terms of regulation 4 of the 1998 Regulations; and

2. Whether there was a breach of regulation 20 of the 1998 Regulations.

They submitted that the first of these issues resolved into two questions:

1. Whether the sheriff was entitled to hold that there was no reasonably foreseeable risk of injury prior to the accident; and

Whether the sheriff was entitled to hold that the ladder was suitable.

[82] The first question turned on consideration of the evidence. An appeal court was constrained in the approach it was appropriate to adopt to the evidence: Thomson v Kvaerner Govan Ltd, and Simmons v British Steel PLC. An appeal court should interfere with findings in fact and with conclusions drawn from findings in fact only in extreme cases. In considering the first question, it was helpful to identify the risk which might have been thought to affect the pursuer's health or safety prior to the accident. That risk was that the ladder would be left hanging, undocked in the brackets; and that an employee would enter the top bunk by using a chair, thereby by-passing the check that would have been made had he used the ladder to climb into the bunk; and that the employee would choose to put his whole weight on the ladder before testing to see whether or not it was secure. That was the risk which the appellant said should reasonably have been foreseen by the respondents when providing the ladder.

[83] The target of achieving suitability for purpose in terms of regulation 4 was to be measured by reference to reasonably foreseeable hazards. In relation to regulation 20, the obligation to clamp 'where necessary' introduced considerations of foreseeability since a step was, realistically, only 'necessary' where the mischief to be guarded against was reasonably foreseeable. Regulation 4 was concerned with the physical condition of the equipment, on the assumption that it would be properly operated by properly trained and instructed personnel. The sheriff correctly followed the observations of Bodey J in Horton. The true view of the present case was that the complaint related not to the physical condition of the equipment but to a failure in instruction and training.

[84] It was Captain Hughes' evidence that it was reasonably foreseeable that the ladder would not be properly docked, and that there were health and safety risks associated with that that should have been recognised by the employers before the accident happened. Captain Hughes did not say that the accident that happened was foreseeable. The broad submission of the respondent was that, on the evidence, the sheriff had rejected Captain Hughes' evidence on foreseeability by implication, though not expressly. There were seven separate reasons why he was entitled to do so:

Captain Hughes was in error as to the condition of the platform at the time. He did not understand that the trim of the platform was being adjusted for sea passage.
On occasion Captain Hughes was evidently reluctant to give answers to the defenders' questions that would have been adverse to the pursuer.
Captain Hughes appeared to have formed his opinions on the basis that the defenders were the operators of the platform, not the employer of workers on board the platform.
There had in fact been no previous accidents associated with the bunk ladders over many years, and the sheriff was entitled to have regard to that.
There were demonstrations in court of the factual situation assumed by Captain Hughes, when the court officer held a J-section bracket, and counsel balanced the ladder on the short leg of the bracket, giving the sheriff a first-hand opportunity to assess the risk of that situation arising in practice.
The sheriff clearly took into account the fact that a fixed ladder could impede the removal of injured persons from the lower bunks.
Finally, a ladder of the kind in question, located in a J-bracket as in this case would have met the requirements of the Merchant Shipping Regulations in the case of a sea-going ship. Parliament cannot be taken to have stipulated as a matter of obligation for the provision of access ladders that were inherently unsafe.

[85] These factors, taken together, entitled the sheriff to reject Captain Hughes' evidence as characterised by the appellant and ultimately to hold that the risk of injury was not reasonably foreseeable. So, it was said, Captain Hughes' evidence did not come up to what the appellant claimed for it, but, if it did, there were good grounds on which the sheriff was entitled to reject it.

[86] In relation to the test of suitability, it was the appellant's submission that the ladder was not suitable because it was not so constructed that it could only be used with the bar located properly in the J-section bracket. There was no evidence that such a ladder actually existed. It would be difficult to find a ladder that could only be positioned perfectly docked. It was inherent in the nature of a portable ladder that it might not be docked properly.

[87] In the light of the practical impossibility of finding a product that met the appellant's test, and given the way the appellant characterised the ladder, the sheriff was entitled to find that the ladder used on the platform was suitable. It was particularly significant that in screwing the ladders permanently in position they would be difficult to remove, and there would be difficulties in removing injured persons in an emergency.

[88] Moving on to regulation 20, counsel submitted that a test of reasonable foreseeability was imported by the reference to necessity. The issues were substantially the same.

[89] In any event, screwing the elements of the support structure to the bunk beds was not 'clamping' as the expression was used in the Regulations. Screwing did not improve the stability of a moveable ladder: it converted it into a fixed ladder. Clamping connoted a temporary arrangement for improving stability. Regulation 20 was not relevant.

[90] For the appellant, Mr Stewart submitted that regulation 4 fell to be construed on its terms, in the light of the Directives, without introducing extraneous factors. The question of suitability was primarily one of fact. Captain Hughes' evidence was not contradicted nor challenged. It was submitted to the sheriff that his evidence had to be accepted. It was not realistic to suggest that it had been rejected: the sheriff had in effect dismissed it as irrelevant, because he said in effect that the determining factor was the experience of the respondents. 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."

[91] On a fair reading of that passage, the sheriff had found as determinative the absence of experience and had not applied the usual test incorporating what the employer ought to have known of the risks. Captain Hughes was being asked about inspection, which the respondents had a duty to carry out, and the assessment of risk in the light of what would have been found. His evidence should be accepted, and the findings in fact adjusted accordingly. The proper approach was to determine what should be the deemed knowledge of an employer properly fulfilling his obligations under the Regulations. Had the respondents done what was required of them they would have known that the ladder required to be stabilized. The duty to ensure the safety of workers could not be discharged without taking the preliminary step of carrying out a risk assessment.

[92] The respondents had contended that there were seven reasons for rejecting Captain Hughes' evidence. But the sheriff had not done so. He was not asked to do so. He had elided the evidence by treating it as irrelevant.

[93] Mr Stewart said that the respondents' argument had developed. It was now said that the sheriff could not have found the accident foreseeable because: (a) the ladder was not properly secured; (b) the pursuer did not climb into the bunk using the ladder; and (c) he put his whole weight on the ladder without testing its security when descending from the bunk. Mr Stewart took issue with this analysis. In the first place, on the evidence and the findings in fact, the misplacement of the ladder ought to have been foreseen. Secondly, climbing into the bunk using a chair was common practice. Thirdly, putting one's full weight on the ladder cannot be said to have been unforeseeable. That was the purpose of the ladder. And doing so without checking was perfectly foreseeable in a situation in which emergency evacuation was a known risk, against which exercises were required. Further, people regularly used bunks in the dark, and when they were disorientated, having just come on board.

[94] Notwithstanding the observations in Griffiths, these Regulations should not be treated as if they defined watertight compartments. There were overlaps. The legislation could not work otherwise. Clarke LJ took the view that the test of suitability assumed that the equipment was operated by a suitably trained operator. The employer was found liable on the ground of negligent failure to carry out a risk assessment, which would have resulted in the provision of adequate instructions. That did not imply that where part of the context was a systematic lack of training, or instruction, the court could not take that into account in considering whether work equipment was suitable. The lack of training and instruction was something capable of being factored into the assessment of the suitability of the work equipment.

[95] Junior counsel for the respondents had appeared to argue that it was in favour of the respondents that the pursuer had not received training in the use of the ladder. But the circumstances of use of the equipment must extend to the removal and replacement of the ladder. There could be a question as to what constituted the circumstances for the purposes of regulation 4 (3), but it could not be acceptable for an employer to rely, in effect, on its own breach of regulation 8 to defend a breach of regulation 4 (3).

[96] So far as regulation 20 was concerned, there appeared to be a number of perceived difficulties. It could be said, however, that when the ladder was properly in its brackets it was clamped. It was accepted that so long as the ladder was not properly engaged in the brackets provided, it could not be stabilised by clamping. That did not preclude clamping to prevent the ladder from being moved: it was arguable that clamping of the ladder was intended to prevent it from being moved into a position of instability. If the ladder were not clamped into position there was a risk that it would end up in a position of instability. In the event, the installation operator came to the view that there was an irremediable risk in having a removable ladder. It followed that the movable ladder was not suitable for its purpose. Regulation 20 aimed at increasing stability by additional means of fixing.

[97] Therefore, if the appellant was 'at work' and if the ladder was 'work equipment', there was liability under regulations 4 (1) and (3) and 20. The sheriff appeared to have difficulty with the concept that an employer who did not have direct control of the facility should be saddled with liability. But such problems were resolved when it was appreciated that risk and liability were allocated among parties by contract and risks were covered by insurance. As a matter of policy there had to be an allocation of liability.

[98] Mr Smith for the respondents took up the appellant's position as he understood it: it was contended that the employers were responsible for the condition of the equipment which, on the hypothesis adopted, was equipment they did not control. They were not the operators of the facility. Indeed to the extent that a steward making up the cabin might have been involved, that person would be an employee of a third party over whom the respondents had no control. The Offshore Installations and Wells (Design and Construction etc) Regulations 1996 imposed duties on duty holders, generally the owners and operators, in relation to accommodation. If the respondents were correct, their employees were not without protection.

[99] Griffiths was the relevant starting point. Equipment was not to be treated as unsuitable where an accident resulted from mishandling of equipment that otherwise would have been safe: Judge LJ at paragraph 47. The appellant's argument was that, in respect of regulation 4 (3), 'conditions of use' depended on circumstances, and, in this case, included lack of training. The opinions in Griffiths made it clear that because regulations 8 and 9 dealt specifically with training and instruction, one had to interpret regulation 4 on the assumption that there had been appropriate training and instruction. The appellant's approach was not warranted on a sound interpretation of the Regulations.

[100] Even if the requirements for training and instruction applied, the pursuer said in cross-examination that he did not need to be given any instruction on the use of a ladder. He was an experienced scaffolder. There was no case based on a failure to train: regulations 8 and 9 were not relied on. There was no exploration of the issues that would have arisen if the question of training and instruction had been raised. Regulation 4 focused on the condition of the equipment. In this case the sheriff found that the equipment was not inherently defective. In Griffiths the issue of training had been raised, but that strengthened the case for present purposes. The court was entitled to make the assessment of suitability in the light of the failure of the appellant to make any case under regulations 8 and 9.

[101] So far as concerned the proposition that for the purposes of regulation 4 equipment was not rendered unsuitable by proof of injury from mishandling, Judge LJ's dictum was significant. Any item of equipment could be so mishandled as to cause injury: that did not imply that the equipment was unsuitable for its purpose.

[102] So far as regulation 20 was concerned, the bracket was within the meaning of the expression 'clamping or otherwise'. The object of the provision was to ensure stability: the bracket stabilised the ladder. If that could not be described as 'clamping' it was securing stability 'otherwise'. It was to be noted that the appellant's argument had drifted away from the contention that screwing the components together was 'clamping', but it remained the respondents' position that the bracket mechanism involved achieving stability by 'clamping or otherwise'.

[103] Turning to the issue of reasonable foreseeability, counsel submitted that the sheriff had expressed the issue well in his note. The question was whether an employer in the position of the respondents could reasonably foresee an accident such as had happened to the appellant. The approach was consistent with the Directives, and especially Article 5 (3) of the Framework Directive, with Hammond, and with Griffiths. In relation to Griffiths it was important to bear in mind that there was a common law case, and to relate the judges' observations to the relevant aspects of the case before them. In relation to the Regulations the court should follow the unanimous opinions in that case.

[104] On the topic of reasonable foreseeability, Mr Smith said that the appellant's characterisation of the sheriff's approach was not accepted: he did not treat Captain Hughes' evidence as irrelevant. The sheriff had held that the accident to the pursuer was not reasonably foreseeable, in marked contrast to Captain Hughes' evidence. He did not expressly reject what Captain Hughes said, but the only inference open was that he did not find those aspects of his evidence reliable. However, if that was an erroneous interpretation of the sheriff's position, an examination of Captain Hughes' evidence did not disclose any evidence of fact relating to reasonable foreseeability. Captain Hughes' evidence was strong on the law, but weak in relation to relevant facts and circumstances and the analysis of factual material. He identified a theoretical risk. He did not evaluate it or assess or quantify it in terms of likelihood. The sheriff saw the exercise that was acted out in court. He was entitled to form a view on what he saw, and he must have formed such a view. Captain Hughes' conclusion that the ladder ought to have been screwed in position was challenged in cross-examination as illogical, having regard to his view that the ladder and its bracketing system would have complied with the Merchant Shipping Regulations. The sheriff did have a basis for saying that if the ladder were fixed it would have caused difficulties in emergencies.

[105] It is not necessary in this case to discuss all of counsel's wide-ranging submissions in the order they presented them, although, in fairness to them, they have been set out fully. The critical issues can be focused more narrowly. It is appropriate to deal with the case based on regulation 20 first.

[106] While the mechanism of the accident in Horton was, one might hope, exceptional, the equipment involved and the additional stabilisation for which the claimant argued, the use of outriggers, perhaps illustrate clearly the normal scope and application of regulation 20. The scaffolding tower was an assembly of moveable components. It was itself moveable equipment. In the particular circumstances, the tower appears to have been stable in its intended use, and would have remained so but for the intervention of a fellow-employee. But it is relatively easy to envisage circumstances in which, because of the surface on which the tower was positioned, or because of the height at which employees had to work, or because of the weight of other equipment or materials that required to be used at some elevation above ground level, additional stabilisation would be required for safety. The addition of outriggers would increase the effective base dimensions of the tower and provide additional resistance against any forces that tended to destabilise the tower. In the case of a ladder, lashing would be used to prevent lateral movement that threatened stability. Electrical and other powered equipment might have to be clamped to a bench to prevent movement. In these typical cases the equipment can be assumed to have been positioned as its manufacturer would have intended, but to require additional stabilisation to retain it in its intended position, having regard to the work to be done and to the requirements of health and safety in the circumstances.

[107] The risk relied on in the present case arose from the misplacement of the ladder relative to its brackets, in a position of instability that, on the evidence, could not have been remedied by any means other than moving it into the bracket provided for it. The picture painted for the sheriff by the experiments in court was of the metal bars fitted to the rear of the ladder being balanced on the top edge of the shorter branch of the J-section bracket. It was not suggested in the course of evidence that in that position it could have been clamped or otherwise stabilised. The 'clamping' proposed involved screwing the ladder to the bunks. It is impossible to envisage a clamping system that would have had the effect of stabilising the ladder in the circumstances envisaged. The sheriff described the ladder as swinging on the bracket. Indeed it is inconceivable that had it been seen to be in that position any reasonably competent person would have considered that it was appropriate to clamp the two elements relative to each other in the physical relationship that existed. Clamping was not a solution to the mischief presented. The solution was to use the means of stabilisation that were available as inherent elements of the equipment as designed and as it was intended to be assembled. Once in its brackets, the assembly was unquestionably secure unless or until it was interfered with. The solution ultimately resolved on was to make use of the existing design, but then to screw the support elements together and to the bunk bars, effectively changing the character of the ladder from a moveable ladder to a fixed ladder. Once that happened it no longer required stabilisation, by clamping or otherwise, for purposes of health or safety. If the only solution to any risk associated with the moveable ladder and its brackets was to screw the ladder permanently in one position, through the brackets and bars, onto the upper and lower bunks, the assembly at the time of the accident might never have been suitable, but, to the extent that it was unsuitable, it would not have been capable of being made suitable by stabilisation by clamping or otherwise.

[108] However, if that is wrong, it was a matter of agreement that the need for stabilisation raises similar issues of reasonable foreseeability under regulation 20 as arise under regulation 4. It was not disputed that 'necessary' stabilisation for purposes of health and safety was limited by implication to what was needed in the way of steps to deal with reasonably foreseeable mischief: Horton per Bodey J at page 182. The sheriff misquoted Bodey J when he used comments related to regulation 5 in his own observations in this case. But his application of the case to regulation 20 was correct. In our view the Court of Appeal's decision on this aspect of the question ought to be followed. Alternative constructions would include, at one end of the spectrum, an objective test of what was required, in absolute terms, to ensure against risks to health and safety, however remote the risks were, provided that they had been identified as possibilities. That was implicit in the appellant's initial approach. But it was not sustained in argument. The test of necessity is related to what an employer, conscious of his obligations to his employees, would do to ensure health and safety in knowledge of the range of risks identified and assessed on a careful analysis of the operations involved and the work equipment made available. The employer would not be required to take steps to counter risks that were mere possibilities beyond the range of reasonable foreseeability. Reasonable foreseeability is an express test of suitability for the purposes of regulation 4. The appellant's proposed alterations to findings in fact 13 and 19 referred to this issue.

[109] In this case it is not necessary to decide whether it would be appropriate to follow the Court of Appeal in Griffiths. At paragraph 29 of that case, Clarke LJ observed that Regulation 4 was:

"...concerned with the physical condition of the equipment, on the assumption that they will be properly operated by properly trained and instructed personnel."

He illustrated that by reference to the assumption implicit in the obligations of the owner of a bus that the bus would be driven by a competent driver. Unless the bus were used solely on private land, the driver would require a public service vehicle licence. The situation might be thought to be illustrative of a relatively narrow set of cases in which specific qualifications would be required to operate the equipment in question, and therefore required before an employer could instruct the use of the equipment. The present case illustrates a use of work equipment at the opposite end of the spectrum. Every worker employed on an offshore installation must sleep, and the accommodation units provided are for the use of a range of employees so wide that it would be wholly inappropriate to assume any level of skill, either in the use of the bunks or in the use of the means of access to and egress from them. In an appropriate case it might be necessary to suggest that the Regulations impose two separate groups of obligations, the first related to the physical condition of work equipment, and the second related to instruction and training. In some cases the factual situation might engage both, but that might not necessarily require a restrictive construction of either by reference to the terms of the other. Similarly, one might have reservations about the generality of Judge LJ's comments at paragraph 47, in view of the submissions made, that would appear to exclude protection even where inadequate control or mishandling of equipment resulted from momentary inattentiveness of an employee such as might be thought to be reasonably foreseeable. However, in this case it is tolerably clear that it would be inappropriate to define any lowest common denominator of skills possessed by the users of the bunks, or to restrict the protection available to the appellant because as a scaffolder he could be assumed to have particular skills and experience in the use of ladders.

[110] The sheriff considered that it was not reasonably foreseeable by the respondents that the ladder on the pursuer's bunk would not be replaced properly and hence not be fully engaged in the J-brackets on the bunk. In our opinion, it is not appropriate to approach the issue at that level of generality. There was, throughout the proof, rather loose evidence related to the 'proper' replacement of the ladder. It appears that there may have been a number of theoretical possibilities. A ladder might be so positioned that the metal plates on the back entered into both J-brackets to some extent, but were not fully driven home. The most obvious result of an employee putting weight on the ladder in such circumstances would be to drive the metal plate home and thereby to increase the stability of the unit to its designed level of efficiency. Another possibility might be that a ladder could be placed on both J-brackets at a skew such that only a short length of the facing surfaces of the two metal elements engaged with each other. The result might be so precarious, and the effect so obviously 'improper', that it would be difficult to understand how it could have escaped detection, or, if it did, how the ladder could have avoided being dislodged on contact. However, it is unnecessary to discuss the range of possibilities: parties selected the manifestation of 'improper' replacement that was presented to the sheriff and demonstrated for his benefit. The reference example was of the plate fixed to the ladder resting along the length of the outer arm of the J-section bracket.

[111] Much of the argument on foreseeable risk turned on the evidence of Captain Hughes. It was his view that the ladder could not have been dislodged or have fallen under the weight of the appellant of it had been properly engaged. Proper location referred to the plate being neatly engaged within the bracket. He thought that there were opportunities for the ladder to be removed and on some occasions not properly replaced. He illustrated what he regarded to be improper location by balancing the plate on the outer limb of the bracket. He was asked whether the ladder could remain mounted in that way for a material time, and said: "Yes, I do believe that there is a possibility". He speculated that there was a further possibility, that the plate could foul on the curtains and so fail to engage with the bracket. But that was not developed. In relation to foreseeability, he said that the risks associated with the arrangements at the time of the appellant's accident 'should have been recognised at that time'. Having set out what he regarded as the principles that should guide practice, he said, quoting from his report:

".. it would have been apparent that a ladder without a secure method of fixing to the side of the bunk bed to prevent it from moving in any [axis] .., presented a hazard and, that it was foreseeable that there would be one or more occasions when someone would slip or fall from the ladder when trying to make an exit or, when the ladder would be dislodged.

It is the author's view that, if inspections had been carried out in accordance with these .. principles, then it would have become clear to those doing the inspection that there were risks associated with the ladder and the attachment arrangement. The ... ladder was not always used and .. it was sometimes taken off the bunk. This should have alerted those doing the inspection that there was a likelihood there would be occasions when the ladder would not be replaced in the designed manner. There was also a likelihood that an insecure ladder attachment arrangement would result in accidental dislodgement, possibly by a sleeper either in the top or bottom bunk, or by a person in the cabin touching and displacing the ladder accidentally as he walked past."

[112] In cross-examination, Captain Hughes returned to the possibility that the ladder would remain balanced for some time:

"Now, you have suggested that the balancing act that you demonstrated, ..., could have lasted for a very considerable time undisturbed? Yes, in my view it could have.

Your answer was that it was 'possible'? Yes.

Not very probable though, is it? It would depend on the movement of the vessel, of the Buchan Alpha, how still it was, how the plates were sitting on the bracket. It would depend on a whole number of things which we really cannot be definitive about."

[113] He proceeded to discuss a number of factors that might disturb a bunk ladder. In relation to accidental dislodgement of a ladder, he was asked, again under reference to his report:

"Anyway, there is a likelihood than an insecure ladder attachment would have been accidentally dislodged? It could be accidentally dislodged.

You say it could be, you say there is a likelihood in your report? Right, we are splitting hairs on the word. I have used "likelihood" and "possibly".

When pressed on accidental dislodgement of a ladder properly engaged in the brackets, he said that that was a fairly remote possibility, "but it is possible". He reinforced that view in answering questions put by the sheriff.

[114] Counsel for the appellant relied on Cullen v North Lanarkshire Council for support for the proposition that the test of reasonable foreseeability was whether there was a foreseeable possibility of injury. The case was concerned with the interpretation and application of the Manual Handling Operations Regulations 1992. The relevant obligation of the employer was "so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured..." The Lord Justice Clerk emphasised the need to identify the precise question at issue, and it can fairly be inferred that his comments were directed to the precise regulations and issues before the court. One issue was whether the pursuer had established that the operation he was engaged on involved a risk of his being injured within the scope of the Regulations. It was not 'whether there was a foreseeable possibility' of his being injured. However, the Lord Justice Clerk proceeded to say:

"As Lord Macfadyen said in Anderson v Lothian Health Board, ..., in dealing with a case under the same regulation, 'for there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability'."

It is not immediately clear what the word 'possibility' adds to 'foreseeable' in the observation. If the risk sought to be relied on is foreseeable, it is immediately more than a mere possibility. But in any event, neither Anderson nor Cullen was concerned with reasonable foreseeability. It is well established that those words import a jury test that is distinguished from the identification of mere possibilities.

[115] The question before this court is whether the sheriff erred in failing to make a finding that the risk of injury associated with the improper placing of a ladder on the J-section brackets provided, the state of balance being maintained for a period of time long enough to subsist when an employee such as the appellant attempted to use the ladder to descend, was reasonably foreseeable. Alternatively, as put by the appellant, was the sheriff bound on the evidence to make such a finding. In our opinion, the sheriff was not bound to make such a finding on the evidence of Captain Hughes. Read as a whole, his evidence did not provide a basis on which, even accepting his evidence as credible and reliable generally, the sheriff was bound to reach a conclusion that the risk of injury to an employee descending from an upper bunk was reasonably foreseeable in the circumstances. The clear evidence of Captain Hughes was that it was easy to engage the plates on the ladder securely in the J-section brackets. When engaged, the assembly was stable and safe so long as it was not interfered with. The arrangement could possibly be interfered with accidentally. But, overall, what the sheriff had to consider was whether it was reasonably foreseeable (a) that the state of balance described could be achieved at all; and (b) that it would subsist when an employee attempted to use the ladder to descend. In our view, Captain Hughes' evidence, at its highest, did not compel the sheriff to the view for which the appellant contends.

[116] However, in any event, the sheriff in this case had a significant advantage over the court. He saw the components of the ladder assembly. And he had demonstrated for his benefit the precise relationship of those components that the pursuer relied on to illustrate the risk his case was founded on. The duty of an appeal court in reviewing the findings in fact of a judge of first instance has been re-visited in two recent cases: Thomson v Kvaerner Govan Ltd, and Simmons v British Steel. In Thomson Lord Hope of Craighead reviewed the established cases. This court would be justified in interfering with the sheriff's findings only if he were plainly wrong. That could not be said in this case.

[117] It follows, in our opinion, that the appeal must fail. The appellant's case was dependent on the reasonable foreseeability of the risk that the ladder might be misplaced as described to the sheriff. The use of the expression 'foreseeable possibility' clouded the issue, and tended to give inadequate weight to the requirement that the risk should be 'reasonably foreseeable'.

[118] The final chapter of argument related to contributory negligence. For the appellant, it was argued, with extensive reference to the evidence, that the sheriff had no real basis in his findings in fact for the view that the pursuer was or ought to have been responsible for his own safety in any respect. No knowledge was imputed to him in findings in fact 13 and 15 relating to the improper replacement of ladders and the consequential risks. That was in marked contrast to finding 12 where knowledge was imputed to the appellant. In the absence of such findings it was inappropriate for the sheriff to attribute any fault to the pursuer. Secondly, it was submitted that 100% contributory negligence was juristically incompetent: Anderson v Newham College of Further Education. There could not be sole fault unless the employer's breach was completely coincident with the employee's breach. In terms of the Framework Directive article 5, the employee's responsibility was subordinate to the employer's responsibility. The employee's responsibility was not to affect the employer's duties. There could not therefore be a finding of 100% contributory negligence. Separatim, the finding of 100% contributory was not warranted. If the accident was caused by breach of the employer's statutory duty, that was the effective cause. The respondents had given the appellant no instructions on the use of the ladder. There was no breach of duty by the appellant. In any event 100% contributory negligence was excessive in the circumstances. The appellant was only getting out of bed and he was confronted by risk: all he failed to do was check that the ladder was where he assumed it would be: in the bracket.

[119] For the respondents it was submitted that the sheriff had made a finding of sole fault, and was entitled so to do. He had repelled the respondents' plea of contributory negligence and sustained their plea of sole fault. He was entitled to do so in the circumstances of this case, in view of the appellant's own description of how he descended from the bunk, and his failure to make any check on the stability of the ladder.

[120] If we had sustained the appeal to the extent of finding that the respondents were in breach of their obligations under the Regulations, or any of them, we could not have found the appellant solely to blame for his accident. The hypothesis would necessarily have been that the employer had allowed a situation of reasonably foreseeable risk to employees such as the appellant to continue without remedy. It would have been clear that the risk had not been addressed at all. In the absence of any clear distinction between the contributors, we would have found the appellant 50% to blame for his own accident.