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Cite as: [2007] ScotCS CSOH_59, [2007] CSOH 59

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 59

PD1199/05

OPINION OF LADY PATON

in the cause

GAVIN SLESSOR

Pursuer;

against

VETCO GRAY UK LIMITED

Defenders:

and

VETCO GRAY CONTROLS LIMITED

Third Party

________________

Pursuer: A Smith QC; Anderson Strathern

Defenders: R Smith QC, Gardiner; Simpson & Marwick

Third Party: No Appearance

23 March 2007

Introduction

[1] The pursuer was born on 2 May 1977. On 13 May 2003 he was working in Aberdeen in the course of his employment with the defenders. A control module weighing about 1.7 tons fell from a crane and struck him. He suffered severe injuries, including amputation of the right leg and arm. In this action he seeks damages from the defenders. The defenders for their part deny liability. They blame a third party, Vetco Gray Controls Limited, who supplied and fitted a component of the crane assembly. They also claim that the accident was caused or contributed to by the pursuer's sole fault or contributory negligence.

Motion for summary decree on the issue of liability

[2 ] After sundry procedure, governed by Chapter 43 of the Rules of the Court of Session, the pursuer sought a jury trial in terms of Rule 43.6(5). The defenders opposed jury trial. The matter was debated before Lord Emslie, but a continued diet of debate became necessary. Before that continued debate could take place, the pursuer amended his pleadings to focus his case solely upon a breach of Regulation 4(3) of the Provision and Use of Work Equipment Regulations 1998. He then enrolled a motion for summary decree against the defenders in terms of Rule 21.2. The defenders opposed the motion in the following terms:

"It is not clear from the motion what remedy the pursuer is seeking. In any event the pursuer's motion should be refused as there is a defence to the action disclosed in the defences. The defenders are not in breach of Regulation 4(3) of the Provision and Use of Work Equipment Regulations 1998. The defenders also offer to prove that the pursuer was solely responsible for the accident. They also offer to prove that the pursuer contributed to his loss, injury and damage through his own negligence."

[3 ] Lord Emslie advised counsel that it was not necessary that he personally should hear the motion for summary decree. The motion came before me. I was invited to find the defenders liable to make reparation to the pursuer, and to restrict any further inquiry to (i) issues of contributory fault; (ii) the question of any liability on the part of the third party; and (iii) quantification of damages. Senior counsel for the pursuer explained that, once the question of summary decree had been decided, the case would return to Lord Emslie for the continued debate on proof or jury trial: hence the pursuer's use of the broad phrase "further inquiry".

Rule of Court 21.2

[4 ] Rule 21.2 of the Rules of the Court of Session provides:

"(1) Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences while the action is depending before the court, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or a part of it, disclosed in the defences.

(2) In applying for summary decree, the pursuer may move the court -

(a) to grant decree in terms of all or any of the conclusions of the summons;

(b) to pronounce an interlocutor sustaining or repelling a plea-in-law; or

(4) On a motion under paragraph (1), the court may -

(a) if satisfied that there is no defence to the action disclosed or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part, as the case may be ...".

Pleadings

[5 ] The parties' pleadings include the following averments:

Statement IV

[6 ] On or about 13 May 2003, the pursuer was working in the course of his employment with the defenders as a Mechanical Fitter. He was working at the defenders' premises at Broadfold Road, Aberdeen. The pursuer was assisting with lifting a control module by crane. The control module weighed about 1.7 tons. The pursuer was guiding the control module into a hole in a structure known as a Christmas Tree. To do this the pursuer had to stand on the Christmas Tree next to the hole. The defenders were using the wrong sized lifting adaptors. As a result the control module was not properly secured to the crane. The control module fell from the crane and struck the pursuer. As a result of the accident the pursuer suffered the following loss, injury and damage. On October 2004 the defenders pled guilty to breaches of Sections 2(1) and 33(1)(a) of the Health and Safety at Work Act 1974 and were fined £17,500. The charges were that the defenders had failed to instruct their employees as to how to identify the correct lifting adaptor, failed to identify who had responsibility to fit the lifting adaptors and failed to provide a system of work which did not require employees to be under or in close proximity to the suspended load when the module was being lifted. During the course of the plea in mitigation the defenders' agent accepted that the defenders were wholly to blame for the accident and expressed remorse on their behalf. The defenders have provided a risk assessment for lifting operations. That risk assessment identifies failures of tackle as a significant hazard with potentially serious or fatal injuries to riggers and slingers. The measure identified to reduce this risk is certification of statutory tests and examinations to be provided with the goods. No such certification or examinations were provided with the lifting adaptor. Since the accident the procedure has been changed so that the modules are guided into position using guidelines. This means that there is no need for anyone to stand on the Christmas Tree beneath the module being lifted. The lifting adaptor was work equipment in terms of the Provision and Use of Work Equipment Regulations 1998. With reference to the defenders' averments in answer, admitted that the pursuer was an experienced banksman. Admitted that the control module and lifting adaptor were supplied to the defenders by Vetco Gray Controls Limited who were formerly known as ABB Offshore Systems Limited. Admitted that in order to install the control module it had to be lifted using a crane. Admitted that the lifting adaptor on the crane had to lock onto a mandril located on top of the control module. Admitted that the lifting adaptor supplied by Vetco Gray Controls Limited was the wrong size for the mandril. Not known and not admitted what role Stephen Rowney had to play in installing the control module. Quoad ultra denied except insofar as coinciding herewith. Explained and averred that the pursuer was following normal practice and procedure at the time of the accident. The defenders are called upon to specify where else the pursuer could have stood in order to carry out this operation.

Answer 4 for Defenders

[7 ] Admitted that on 13 May 2003, the pursuer was working in the course of his employment with the defenders as a Mechanical Fitter. Admitted that he was working at the defenders' premises at Broadfold Road, Aberdeen. Admitted that the defenders were convicted of breaches of the Health and Safety at Work Act 1974 and fined £17,500. The circumstances of the accident are not known and not admitted. Any loss, injury or damage sustained by the pursuer is not known and not admitted. Quoad ultra denied. The pursuer was an experienced banksman. He had received training as a banksman slinger. He fitted the lifting adaptor to the control module. He did not check that the lifting adaptor was the correct size for the mandril. He did not make sure that the lifting adaptor was securely locked onto the mandril on the control module before advising the crane operator to lift the control module. In addition he was under the control module when it fell. He was trained not to place himself below a suspended load during a lifting operation. The pursuer caused or materially contributed to his own injury by failing to make sure that the lifting adaptor was the correct size for the mandril, failing to make sure that the adaptor was securely locked onto the mandril and standing beneath a suspended load. In any event the control module and lifting adaptor were supplied to the defenders by Vetco Gray Controls Limited, 2 High Street, Nailsea, Bristol, BS48 1BS who were formerly known as ABB Offshore Systems Limited. Stephen Rowney, a Field Service Engineer with Vetco Gray Controls Limited, was responsible for the installation of the control module. In order to install the control module it had to be lifted using a crane. The lifting adaptor on the crane had to lock onto a mandril located on top of the control module. The lifting adaptor supplied by Vetco Gray Controls Limited was the wrong size for the mandril. Stephen Rowney did not check that the lifting adaptor was the correct size for the mandril. He did not supervise the lifting operation. Esto the accident occurred because the wrong lifting adaptor was used to lift the control module, which is not known and admitted, the accident was caused by the fault and negligence of Vetco Gray Controls Limited et separatim their breach of statutory duty. It was also caused by the fault and negligence of Stephen Rowney for whom Vetco Gray Controls Limited are vicariously liable.

Statement VI

[8 ] The accident was caused by the defenders' breach of Regulation 4(3) of the Provision and Use of Work Equipment Regulations 1998. The defenders' averments are denied insofar as coinciding herewith.

Answer 6 for Defenders

[9 ] Regulation 4(3) of the Provision and Use of Work Equipment Regulations 1998 is referred to for its terms beyond which no admission is made. Quoad ultra denied. The defenders contend that (i) they are not liable to make reparation to the pursuer, (ii) the accident was caused by the sole fault of the pursuer, (iii) the pursuer caused or materially contributed to the accident by his own fault and negligence and any award of damages should be reduced in terms of the Law Reform (Contributory Negligence) Act 1945, (iv) the accident was caused by the fault and negligence of Vetco Gray Controls Limited et separatim their breach of Regulations 4 and 8(1) of the Lifting Operations and Lifting Equipment Regulations 1998 and Regulations 4 and 12 of the Provision and Use of Work Equipment Regulations 1998, (v) the accident was caused by the fault and negligence of an employee of Vetco Gray Controls Limited for whom they are vicariously liable, (vi) even if the defenders are liable to the pursuer to some extent, Vetco Gray Controls Limited are also liable and damages should be apportioned between them in terms of Section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, (vii) the sums sought are excessive and (viii) Clause B13 of the Consortium Agreement does not provide the third party with an indemnity from the defenders.

Provision and Use of Work Equipment Regulations 1998

[10 ] Regulation 4(3) of the Provision and Use of Work Equipment Regulations 1998 ("the 1998 Regulations") provides:

"Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable."

[11 ] Regulation 4(4) defines "suitable" as meaning "suitable in any respect which it is reasonably foreseeable will affect the health or safety or any person".

Submissions for the pursuer

[12 ] Senior counsel for the pursuer submitted that the reason for the accident was set out in the defenders' own pleadings in Answer 4 at page 9D to 10A of the Record, as follows:

"In order to install the control module it had to be lifted using a crane. The lifting adaptor on the crane had to lock onto a mandril located on top of the control module. The lifting adaptor supplied by Vetco Gray Controls Limited was the wrong size for the mandril. Stephen Rowney [a field service engineer with Vetco Gray Controls Limited responsible for the installation of the control module] did not check that the lifting adaptor was the correct size for the mandril. He did not supervise the lifting operation ..."

[13 ] The defenders therefore accepted that the wrong work equipment had been supplied, but they blamed the suppliers and their employee Stephen Rowney.

[14 ] At page 6C of the Record, the pursuer averred that the defenders had in October 2004 pled guilty to breaches of sections 2(1) and 33(1)(a) of the Health and Safety at Work Act 1974, and had been fined £17,500. The relevant complaint was in the following terms:

"The charge against you is that:

on 13 May 2003, at your premises at Broadfold Road, Aberdeen, you ... being an employer did fail to ensure so far as reasonably practicable the health, safety and welfare at work of your employees and in particular

(a) you did fail to instruct your employees that there were two types of lifting adaptor for Subsea Control Modules ... and did fail to instruct your employees how to identify the correct lifting adaptor for each Subsea Control Module and did fail to instruct your employees as to who had the responsibility to fit lifting adaptors to Subsea Control Modules; and

(b) you did fail to put in place a safe system of work for the fitting of Subsea Control Modules to "Christmas tree" assemblies and in particular, did fail to put in place a system of work which did not require your employees to be under or in close proximity to a suspended load when a Subsea Control Module was being lifted onto the Christmas Tree;

whereby on 13 May 2003, at said premises whilst your employee Gavin Slessor was engaged in fitting said Subsea Control Module to a "Christmas tree" assembly, the said Subsea Control Module was fitted with an unsuitable lifting adaptor, was lifted and fell from the lifting adaptor, striking said Gavin Slessor on the body, in the course of his work, all to his severe injury and permanent impairment;

CONTRARY to the Health and Safety at Work etc Act 1974, section 2(1) and 33(1)(a) ..."

[15 ] Counsel submitted that it was illogical of the defenders to plead guilty to that charge, and yet to aver on record that the accident had been caused by the pursuer's sole fault. The defenders' only response to the conviction were the bald averments at page 8C:

"Admitted that the defenders were convicted of breaches of the Health and Safety at Work Act 1974 and fined £17,500. The circumstances of the accident are not known and not admitted."

[16 ] Counsel submitted that it was astonishing that the defenders claimed not to know the circumstances of the accident.

[17 ] Reference was then made to Rule 21.2(2)(c) and 21.2(4) of the Rules of the Court of Session, and to the terms of Regulation 4(3) of the 1998 Regulations. The words "shall ensure" in Regulation 4(3) imposed an apparently absolute obligation upon employers, although the word "suitable" might be regarded as introducing a qualification or acknowledgement that the question of reasonable foreseeability might arise to some extent in relation to the suitability of work equipment. The complaint under the Health and Safety at Work Act had charged the defenders with failing to ensure "so far as reasonably practicable" the health, safety and welfare of their employees. It was difficult to see how the defenders could plead guilty to failing in that respect if it had not been reasonably foreseeable that using the wrong component in a crane assembly intended to lift a heavy load which would swing over an employee's head would constitute a risk to that employee's health, safety and welfare. But in any event, any element of foreseeability contained in Regulation 4(3) was not the common law reasonable foreseeability.

[18 ] Counsel then referred to Section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. In terms of Section 10(2)(b), the court was entitled to look at the complaint when ascertaining the facts connected with the accident. The fact that the defenders had been convicted meant that the court was obliged to assume that the defenders had acted in the way set out in the complaint, unless the defenders offered to prove otherwise. The defenders' averments did not offer to prove otherwise. Accordingly it was legitimate for the court to take into account the terms of the convictions and the terms of the Health and Safety at Work Act, and to reach a view about the facts. Those facts could be seen to amount to an offence in the criminal context, and, it was submitted, to a breach of duty in the civil context: cf. Cooper v Northern Scaffolding Group plc, 1997 S.L.T. 157.

[19 ] The proper approach to summary decree and the operation of Rule 21.2 had recently been considered in the House of Lords in Henderson v 3052775 Nova Scotia Ltd, 2006 SC (HL) 85, in particular by Lord Rodger at paragraphs [11] to [19]. The court had to examine the pleadings and decide whether there was a genuine defence. If there was none, the motion for summary decree was well justified. In the present case, in the absence of any averments offering to prove that the defenders did not do what they had pled guilty to, a judge conducting a jury trial would be bound to direct the jury to answer the Issue in the affirmative. The defenders were indeed "bound to fail". The test for summary decree was a high one, but the present case met the test.

[20] Further guidance could be found in Pope v James McHugh Contracts Limited and another, 2006 S.L.T. 386; and in Robb v Salamis (M and I ) Ltd, 2007 SLT 158, paragraphs [24], [29], [45] and [53]. In Pope, the Lord Ordinary considered a non-delegable duty, and granted summary decree despite the fact that the proof diet was imminent. In the present case, the duty in terms of Regulation 4(3) was similarly non-delegable, and no proof diet or jury trial had been fixed. In Robb, the House of Lords made a careful analysis of the nature and origins of the 1998 Regulations, and the question of reasonable foreseeability in that context. Counsel submitted that in the present case it was for the defenders to state why something was not foreseeable: the pursuer did not have to aver why something was foreseeable.

[21] Counsel submitted that the case against the defenders was so clear that there was no conceivable defence. The defenders were simply taking every opportunity to over-complicate matters in order to avoid a jury trial. If summary decree were granted, the jury could be told that liability was established. In any event, the pursuer would have little evidence to lead on the question of liability, possibly leading only the solicitors who appeared for the defenders in the criminal case to confirm that the defenders had pled guilty.

[22 ] Counsel reiterated that the pursuer's case met the test set out in Henderson cit. sup. Summary decree should be granted in the terms outlined in paragraph [3] above.

Submissions for the defenders

[23 ] Senior counsel for the defenders confirmed that the defenders' position was as averred at page 9D-E, namely that the third party had supplied and fitted the lifting adaptor, which was the wrong size for the mandril. Counsel accepted in the course of the debate that the defenders had made an apparently contradictory averment at page 10A‑B, namely "Esto the accident occurred because the wrong lifting adaptor was used to lift the control module, which is not known and not admitted [italics added], the accident was caused by the fault and negligence of Vetco Gray Controls Limited ...". The words "which is not known and not admitted" should, in the light of the defenders' earlier clear admission about the wrong lifting adaptor, be regarded as pro non scripto.

[24 ] So far as the third party was concerned, an agreement had been reached with the defenders based on the premise "In the event that the defenders are found liable to the pursuer ...".

[25 ] The defenders accepted the terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, and admitted the conviction under the Health and Safety at Work Act 1974. However Section 47 of the 1974 Act provided that failure to comply with a statutory duty conferred no right of action in civil proceedings. That affected the extent to which the court should have regard to the convictions. The offences under the Health and Safety at Work Act 1974 were different from the duties in terms of the 1998 Regulations which the defenders were said to have breached. The criminal conviction related to failure to instruct and to have a safe system, whereas the regulations were concerned with the suitability of work equipment. Reference was made to Gray v Fire Alarm Fabrication Services Limited [2006] EWHC 849 (QB) paragraphs 51 and 52. It was accepted that the court might take from the conviction that certain events had occurred: but as an adminicle of evidence, the content of the specific charge was different from the alleged breach of duty in the civil case.

[26] Before granting summary decree, the court had to be satisfied that there was no defence, and that the defenders were bound to fail at the proof: Henderson v 3052775 Nova Scotia Ltd, 2006 SC (HL) 85. However the defenders' contention was that Regulation 4(3) was subject to paragraph (4) and to reasonable foreseeability. There was therefore a qualification of the duty. The question of reasonable foreseeability was an important matter. Reference was made to Lord Clyde in Robb v Salamis (M and I) Ltd, 2007 SLT 158, paragraph [45]. Counsel submitted that, in the present case, the onus in relation to reasonable foreseeability lay on the pursuer. In that context, the question to be answered was:

"Is it reasonably foreseeable that an employee's health would be adversely affected should the work equipment be used for this operation?"

[27] To answer that question would involve an assessment of the facts. Counsel submitted that it could not be assumed that such an assessment would necessarily favour the pursuer, particularly where there were competing arguments as to onus of proof. Neither the pursuer nor the defenders had made a specific averment about what was foreseeable, although each had averred facts from which inferences could be drawn. It was accepted that the duty in terms of Regulation 4(3) was not delegable. It was a duty expressly imposed upon the pursuer's employers. But in the present case, the fact that the work equipment had been supplied and fitted by a third party affected what could be regarded as reasonably foreseeable. If the relevant work equipment was supplied and installed by a third party, that affected the extent to which the defenders should have foreseen the risks. The court had to assess all the facts, and that included giving some consideration to the fact that the third party had supplied and installed the relevant work equipment. The defenders' position was that the risk of failure of the crane assembly might have been foreseeable in the eyes of the third party, but not in the eyes of the defenders.

[28 ] Counsel accepted that in terms of the Regulations, the pursuer did not have to prove that the defenders actually foresaw (or should reasonably have foreseen) the risk to employees. It was accepted that in terms of the Regulations, the court had to carry out an objective assessment of the suitability and safety of the work equipment. Nevertheless the defenders' contention was that the level of foreseeability depended upon the individual concerned. The test involved an assessment of all the factors, and accordingly it might be significant whether the individual concerned was an employee on the factory floor, an employer in charge of the work, or an employer or a third party who supplied and installed the equipment. Each individual might have a different level of foreseeability. On the pleadings in the present case, in the absence of detailed evidence about what had gone wrong, it was not possible to form a view that the defenders were bound to fail in their challenge as to what was reasonably foreseeable.

[29 ] In relation to the authorities cited on behalf of the pursuer, counsel for the defenders submitted that each case turned on its facts. For example, in Pope v James McHugh Contracts Limited and another, 2006 S.L.T. 386, there were particular factors which enabled the Lord Ordinary to grant summary decree.

[30 ] Finally, counsel referred to Mackays Stores Ltd v City Wall (Holdings) Ltd, 1989 S.L.T. 835 (a decision concerning a lease). Lord McCluskey observed at page 836D:

"It is plain to me that the issue which falls to be determined is indeed an issue of the interpretation of this part of the document and to that extent is a pure question of relevancy. The proper course at the appropriate time will be either to dismiss the action as irrelevant if counsel for the defenders' interpretation of the document be sound or to repel the defences and to grant decree de plano if counsel for the pursuers' interpretation be correct. If the matter were so clear that I could now decide that the pursuers' submission on that interpretation was sound, then I consider it would be appropriate to grant summary decree. The test I have to apply at this stage must be to ask myself if the question of law which is raised (the only question being one of law) admits of a clear and obvious answer in the pursuers' favour..."

[31 ] Counsel submitted that the question of law in the present case was the issue of onus in terms of Regulation 4(3). The issue was a live one, which had not been resolved. Where such a question of law arose, unless that question admitted of a clear and obvious answer in the pursuer's favour, the case should not be decided on what was, in effect, the motion roll.

Reply for the pursuer

[32 ] Senior counsel for the pursuer responded on three matters:

[33 ] First, the pursuer did not rely upon the convictions as establishing an automatic breach of the Regulations: cf. dicta in Gray v Fire Alarm Fabrication Services Limited [2006] EWHC 849 (QB). The pursuer relied on the facts upon which those convictions were based in terms of section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968.

[34] Secondly, it was significant that, wherever the onus lay in relation to foreseeability, the defenders had not submitted that what occurred was not reasonably foreseeable. Counsel did not accept that the onus rested on the pursuer, but in any event, the pursuer had appropriate averments at page 7A ("That risk assessment identifies failure of tackle as a significant hazard with potentially serious or fatal injuries to riggers and slingers.")

[35 ] Thirdly, the defenders had been convicted of failing to do something termed "reasonably practicable", yet they denied that a risk was foreseeable. That was an illogical approach.

[36 ] Ultimately, wherever the onus lay, the question was whether it was reasonably foreseeable that an employee might be injured, and the answer to that question was in the affirmative.

Discussion

[37 ] Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 provides inter alia:

"(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

(4) In this regulation "suitable" -

(a) subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person ..."

[38 ] In my opinion, where a crane assembly includes interlocking devices such as a lifting adaptor and a mandril, one of which has to lock on to the other in order to provide the composite which will lift a weight of 1.7 tons, it cannot be contended that a lifting adaptor which is acknowledged to be the "wrong size" for the mandril (see pursuer's Statement IV at page 6B-C; and defenders' Answer 4 at page 9D-E) is work equipment which is being "used only for operations for which, and under conditions for which, it is suitable". Something which is the wrong size is by definition not suitable in terms of Regulation 4. Accordingly I consider that the defenders' averments clearly acknowledge a breach of Regulation 4.

[39 ] Furthermore, with reference to the definition of "suitable" in Regulation 4(4), I do not accept that the level or degree of reasonable foreseeability may vary depending upon whether an individual was, for example, an employee working on the factory floor, or a manager, or an employer supplying and installing equipment for his employees, or an employer relying upon a third party to supply and install the equipment. The statutory definition of "suitable" in Regulation 4(4) is in my view an objective question for the court to decide on the facts of the case: cf. Robb v Salamis (M and I) Ltd, 2007 SLT 158, paragraphs [23] to [27].

[40] In the present case, certain crucial facts are admitted in the pleadings. The defenders themselves aver that "the lifting adaptor supplied by Vetco Gray Controls Limited was the wrong size for the mandril" (Record page 9D-E). As a result, a component in the relevant crane assembly was the wrong size; the crane assembly was not (and could not have been) properly and correctly constructed; and it follows in my view that it was reasonably foreseeable that as soon as the incorrectly-constructed crane assembly was put into use by the carrying of a heavy load, there was a risk that the component parts would not hold together. Bearing in mind the scale of the operations involved, the size and weight of loads being carried, and the forces involved, the risk that component parts would not hold together inevitably carried a risk of injury to employees in the vicinity, whether the ultimate event was a load moving unexpectedly, or a component of the crane assembly becoming detached, or the load itself dropping to the ground, or some other dangerous event: cf. the pursuer's averments in Statement IV at page 6E to 7D:

"The defenders have provided a risk assessment for lifting operations. That risk assessment identifies failure of tackle as a significant hazard with potentially serious or fatal injuries to riggers and slingers."

See too the dicta of Lords Hope and Clyde in Robb v Salamis (M and I) Ltd, 2007 S.L.T. 158, paragraphs [29] and [39].

[41 ] Accordingly even without the conviction referred to in terms of Section 10 of the Law Reform (Miscellaneous Proceedings) (Scotland) Act 1968, I am satisfied that the parties' averments (as refined and clarified by counsel for the defenders in the course of the debate, see paragraph [23] above) disclose a clear breach on the part of the defenders of Regulation 4(3) of the 1998 Regulations. The conviction in terms of the Health and Safety at Work Act 1974 gives added strength to the pursuer's case, in that the defenders have been found as a matter of fact to have failed to ensure so far as reasonably practicable the health, safety and welfare at work of their employees (including the pursuer) in the context of the lifting adaptor described in the complaint as "unsuitable". The facts set out in the complaint must be taken pro veritate in the light of the unchallenged conviction: cf. Section 10(2)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968.

[42 ] It will be seen that I consider the facts admitted in this case to make such a clear case of reasonably foreseeable risk to the health or safety of the pursuer that the issue of onus in terms of Regulation 4(3) does not arise. If, contrary to my view, the issue of onus remains live, it seems to me that the clear inference which arises when a component part of a crane assembly is the "wrong size" is that the component part will not fit properly, and therefore will not properly perform its functions. One important function of a lifting adaptor such as the one in question was to provide a secure link when the crane was lifting heavy loads. If the lifting adaptor provided cannot be relied upon to perform its functions (including the function of providing a secure link) then it follows that it is reasonably foreseeable that the wrong-sized component will result in a malfunction or a disintegration of the crane assembly, with risks to the health and safety of employees in the vicinity. In such circumstances it is my view that the onus then rests on the defenders to rebut this conclusion, with averments offering to prove why, despite its wrong size, the lifting adaptor was suitable for use in the crane assembly without incurring such risks. No such averments are made by the defenders in the present case. Without such averments, the defenders are in my view bound to fail.

[43 ] Finally, I should add that it was not disputed that the question whether the defenders have a right of relief against the third party supplier and fitter Vetco Gray Controls Limited is irrelevant when assessing the defenders' liability for breach of their non-delegable duty in terms of Regulation 4(3) of the 1998 Regulations.

Decision

[44 ] I have concluded that the defenders have no genuine defence to the pursuer's case based on Regulation 4(3) of the Provision and Use of Work Equipment Regulations 1998. I therefore consider that the defenders are bound to fail on the issue of liability. That being so, the motion for summary decree is well founded: cf. Henderson v 3052775 Nova Scotia Ltd, 2006 SC (HL) 85, Lord Rodger at paragraphs [11] to [19]. I accordingly grant summary decree in terms of Rule of Court 21.2, finding the defenders liable to make reparation to the pursuer, and restricting any further inquiry to issues of contributory fault, the question of any liability on the part of the third party, and quantification of damages. I reserve the question of expenses to enable parties to address me on that matter.