United Kingdom House of Lords Decisions

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Robb (Appellant) v. Salamis (M & I) Limited (formerly known as Salamis Marine & Industrial Limited) (Respondents) (Scotland)

[2006] UKHL 56

LORD HOPE OF CRAIGHEAD

My Lords,

1.   The pursuer raised an action in the Sheriff Court at Aberdeen in which he claimed damages against his employers for personal injuries suffered on 6 September 1999 while he was working offshore on a semi-submersible production platform. His sole case of fault was that the accident was caused by his employers' breach of regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) ("the Work Equipment Regulations").
2.   On 16 October 2003 the sheriff (D J Cusine) held that his employers were not in breach of either of those regulations and that in any event the accident was caused wholly by the pursuer's own fault. The pursuer appealed to the Inner House of the Court of Session against the sheriff's interlocutor. On 16 March 2005 an Extra Division (Lord Penrose, Lady Cosgrove and Lord Reed) altered the sheriff's finding of contributory negligence by finding that the pursuer was 50% to blame for the accident but otherwise refused the appeal: 2005 SLT 523, [2005] ScotCS CSIH_28. The appellant now appeals to your Lordships' House under section 32(5) of the Court of Session Act 1988, which states that the judgment of the Court of Session on any appeal from the judgment of the sheriff shall be appealable to the House of Lords only on matters of law.
3.   There are two questions of law before your Lordships. The first is whether the pursuer has established that the defenders were in breach of their statutory duty. The answer to this question is to found by construing the regulations and then applying them, according to their proper construction, to the facts. The second is whether the sheriff had a sound basis in law for finding that the accident was caused to any extent by the fault of the pursuer.

The facts

4.   At the time of the accident the platform was stationary in the Moray Firth about five miles offshore from Burghead. It was being fitted out in preparation for onward transit to the Buchan Field, where it was normally used for extracting oil and gas from beneath the North Sea. The pursuer's employers had contracted to supply scaffolding services to its owners while the platform was being fitted out, and he was working on board the platform as a scaffolder. The accident happened while he was in the accommodation that was provided for men working on the platform. It was equipped with two-tier bunks and with suspended ladders held in position by retaining bars which provided access to the top bunks. He had been sleeping on one of the top bunks. He attempted to descend from the top bunk using the suspended access ladder. The ladder was not properly engaged within the retaining bars. Both he and the ladder fell to the floor and he was injured.
5.   The sheriff's findings of fact describe the situation in a little more detail. The ladders which provided access to the top bunks were situated at the foot of each bunk. Although he did not find as a fact that the ladders were suspended, that was what the pursuer averred and it was common ground that this was so. The pursuer also averred that the ladders were about 3 feet long, with 6 rungs and a base which was about 2 feet above the floor. The sheriff found that they were constructed with a horizontal metal bar between the top and bottom rails of the ladder, and that each bar fitted into a J-shaped metal retaining bar which was screwed to wooden bars which ran along the length of the top and bottom bunks. The Extra Division referred to the horizontal metal bars as "plates" and to the J-shaped metal retaining bars as "brackets". I prefer their words to those used by the sheriff, as they make it easier to understand how the system was meant to work. When the plates were properly engaged, they fitted neatly and securely into the retaining brackets. The sheriff found that it was not difficult to place the ladders into that position. Nor was it difficult to remove them from the retaining brackets.
6.   The following findings of fact are directly relevant to the circumstances of the pursuer's accident:
"12.  These ladders were removable and they were frequently removed and replaced. Sometimes persons occupying the lower bunks would remove them and place them on unoccupied top bunks. Sometimes they would be removed by stewards who came into the cabins to make up the bunks and clean and tidy the accommodation. The pursuer was aware that these things happened.

13.  When the ladders were being replaced, the person replacing them might not replace them properly within the metal retainers.

14.  On the morning of 6 September, the pursuer got into the top bunk by standing on a chair, which was not uncommon. Had the pursuer used the ladder to get into the bunk, he would have know whether the ladder was securely in the metal retainers or not.

15.  If the ladder was not properly engaged within the metal retainers, it might become dislodged and might fall when being used. Had the ladder been properly engaged, it is highly unlikely that it would have dislodged accidentally.

16.  When the pursuer awoke at approximately 4.30pm on 6 September, he made to descend from his bunk using the ladder. He sat on the bunk facing outwards and put his full weight on his right foot on a rung of the ladder. Before doing so, the pursuer did not check to see whether the ladder was properly engaged.

17.  As soon as the pursuer's weight was on the ladder, it gave way and he fell to the floor, a distance of approximately 5 feet."

7.   Within 9 months after the accident the owners of the platform had adapted all the ladders by drilling holes through the horizontal metal plates and the J-shaped metal retainers. The ladders were then fixed by means of screws onto the wooden rails on the top and bottom bunks. As a result of this adaptation the ladders cannot now be moved. The possibility of their not being replaced properly has effectively been eliminated. The sheriff found that this was a straightforward, simple and inexpensive operation which it would have been reasonably practicable to carry out before the pursuer met with his accident.
8.   The first question is whether, on these findings, the pursuer has succeeded in establishing his case that the accident was caused by a breach of regulations 4 and 20 of the Work Equipment Regulations. The answer to it seems to me to be quite straightforward. The accident was caused by the fact that the ladder was not fixed in position when the pursuer tried to use it to descend from his bunk. It had not been replaced properly when it was last removed from the metal retaining brackets. This was due, no doubt, to the carelessness of the person who last handled it. No-one has suggested that this was done deliberately. When an employer is assessing the risks to which his employees may be exposed when using equipment that he provides for them to work with, he must consider not only the skilled and careful man who never relaxes his vigilance. He must take into consideration "the contingency of carelessness on the part of the workman in charge of it and the frequency with which that contingency is likely to arise": Hindle v Birtwistle [1897] 1 QB 192, 195 per Wills J; John Summers & Sons Ltd v Frost [1955] AC 740, 765 per Lord Reid. The ladder was not suitable for the purpose for which it was used and provided because a person replacing it might not replace it properly due to carelessness, and because a fall from a ladder which had not been replaced properly was likely to cause injury. That risk could have been avoided by screwing the ladder to the side of the bunks, as was done after the accident.
9.   How then, on those simple facts, did the sheriff and their Lordships of the Extra Division come to the opposite conclusion on the question whether the defenders' statutory duty had been breached? Their reasons must be examined in the light of the words used by the regulations, which I will now set out.

The Work Equipment Regulations

10.   The origin of the Work Equipment Regulations is to be found in Council Directive 89/391/EEC of 12 June 1989 ("the Framework Directive") and in Council Directive 89/655/EEC of 30 November 1989 ("the Work Equipment Directive") concerning the minimum safety and health requirements for the use of work equipment by workers at work. The Work Equipment Directive was one of six individual Directives which followed the Framework Directive, all of which had to be implemented by 31 December 1992. Among the regulations that were made under the Health and Safety at Work etc Act 1974 to give effect in national law to the Framework Directive and its "daughter" Directives were the Management of Health and Safety at Work Regulations 1992 (SI 1992/2051) ("the Management Regulations") and the Provision and Use of Work Equipment Regulations 1992 (SI 1992/2932). The Provision and Use of Work Equipment Regulations 1992 were repealed and replaced by the 1998 Work Equipment Regulations with which this case is concerned.
11.   Among the sheriff's findings in fact and law were findings that the pursuer was not "at work" at the time of his accident and that the ladder and its metal retainers did not constitute "work equipment" within the meaning of the Work Equipment Regulations. The Extra Division reversed these findings, and there has been no appeal against that part of its interlocutor. The case was argued before your Lordships on the assumption, which I regard as entirely justified, that the pursuer was at work within the meaning of those Regulations at the time of his accident and that the ladder and its metal retainers were work equipment as defined by regulation 2(1). The pursuer gave notice in his pleadings that he was alleging a breach of regulation 5, which provides by paragraph (1) that every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. But this argument was not developed at the proof. The regulations on which the sheriff was asked to make his findings were regulations 4 and 20.
12.   Regulations 4 and 20 of the Work Equipment Regulations provide as follows:
"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.

(2)  In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(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' means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.

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

13.   The pursuer did not allege a breach of any of the Management Regulations. Mr Stewart QC said that this was because they do not give rise to civil liability. I would prefer to reserve my opinion on that point: see Redgrave's Health and Safety (4th ed, 2002), para 2.16. It is proper nevertheless, when construing regulations 4 and 20 of the Work Equipment Regulations, to take account of regulation 3(1) of the Management Regulations which provides:
"Every employer shall make a suitable and sufficient assessment of -

(a)  the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b)  the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions."

Regulation 3(3) provides that an assessment of the kind referred to in paragraph (1) shall be reviewed by the employer who made it if there is reason to suspect that it is no longer valid or there has been a significant change in the matters to which it relates. These provisions provide the context for his obligations under regulations 4 and 20 of the Work Equipment Regulations.

14.   It is necessary, when construing those regulations, to have regard also to the provisions of the Framework Directive and the Work Equipment Directive that the Work Equipment Regulations were designed to implement. The rule is that the domestic court must seek to interpret national law to achieve the same result as is intended by the relevant provision of EU law, where it is reasonably possible to do so: Pickstone v Freemans plc [1989] AC 66; Litster v Forth Dry Dock & Engineering Co 1989 SC (HL) 96, 105, per Lord Oliver of Aylmerton. Article 1 of the Framework Directive provides:
"1.  The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.

…
3.  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 at work."

    Article 5 provides:

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

…
3.  The workers' obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.

4.  This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care."

15.   Article 3 of the Work Equipment Directive sets out the general obligations of employers. It provides:
"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.

In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of [the] work equipment in question.

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 minimize the risks."

Regulation 4 of the Work Equipment Regulations gives effect to article 3(1) of this Directive. But there is no definition in the Work Equipment Directive of the meaning that the word "suitable" is to have for the purposes of article 3(1). This must be borne in mind when the definition of this word in regulation 4(4) is being considered. So too must article 1 of the Framework Directive. The dominant purpose of all these provisions is to encourage improvements in the safety and health of workers at work. In my opinion the purpose of regulation 4(4) is to ensure, not to reduce, the protection provided for by article 3(1) of the Work Equipment Directive that regulation 4(1) was designed to implement.

16.   Article 4, which deals with rules concerning work equipment, states that, without prejudice to article 3, the employer must obtain and/or use work equipment which complies with the minimum requirements laid down in the Annex to the Directive. Rule 2.6 of the Annex provides:
"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."

That rule is given effect to by regulation 20 of the Work Equipment Regulations.

The reasons given by the courts below

17.   The sheriff dealt first with the question whether regulations 4(1) and 4(3) of the Work Equipment Regulations had been breached. At p 34 of his note 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."

He then dealt with other risks of injury which, on his own findings, did not arise on the facts of this case. They were whether it was reasonably foreseeable that the ladder would be accidentally dislodged if it had been properly engaged in the retaining brackets and that the appellant might slip on the ladder even if he was taking great care.

18.   Turning to regulation 20, the sheriff noted that the obligation to clamp or otherwise is qualified by the words "where necessary". He based his approach on Horton v Taplin Contracts Ltd [2003] ICR 179, where the claimant was injured when a scaffolding tower on which he was working was upset by the violent act of a fellow employee. The claimant's claim that his accident was caused by breaches of the 1992 Work Equipment Regulations was dismissed. It was held that the working place was only unsafe because of the fellow employee's unlawful intervention, which was not foreseeable. The sheriff referred to an observation by Bodey J in para 15 that to interpret regulation 5(2) of the Construction (Health, Safety and Welfare) Regulations 1996 without having regard to what was reasonably foreseeable would be an affront to common sense. That regulation, which provides that every place of work shall so far as reasonably practicable be made and kept safe, was not founded on by the appellant in this case. However Bodey J made the same point about regulation 20 of the Work Equipment Regulations in para 10 of his judgment. He observed that a step was only realistically necessary when the mischief to be guarded against could be reasonably foreseen. The sheriff said that in his opinion neither the ladder nor the metal retainers were inherently unsafe. He accepted the evidence of the appellant's expert that offshore installation operators tend to follow the pattern for ships, which was that ladders must be portable.
19.   It appears that it was because there was no evidence about previous accidents of this kind that the sheriff was persuaded that it was not reasonably foreseeable that the ladders might not be replaced properly and cause a person such as the pursuer to fall and sustain injury. He appears to have applied the same test to the pursuer's case under regulation 20, when he concluded that the ladders were not inherently unsafe and that it was the accepted practice for such ladders to be portable.
20.   The opinion of the Extra Division was delivered by Lord Penrose: 2005 SLT 523. The relevant passages are to be found at pp538-541. He dealt first with regulation 20, which he said raised issues of reasonable foreseeability which were similar to those under regulation 4. In para 107 he rejected permanent clamping as a solution to the problem of misplacement relative to its brackets of a ladder that was intended to be moveable. He appears to have done so without examining the question whether, because of risks to workers using the ladders, clamping to hold them in position was necessary. Dealing then in para 108 with regulation 4, he referred to Bodey J's observation about foreseeability in Horton, para 10. Developing this point at p 538J-K he said:
"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."

21.   He summarised the sheriff's decision on the facts in the opening sentence of para 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"

He declined to examine various theoretical ways in which the ladder might have been improperly replaced. He said that it was not appropriate to approach the issue on that level of generality. He concentrated instead on what he described as the manifestation of improper replacement that was presented to the sheriff and demonstrated for his benefit. Having done so, he concluded in para 115 that the sheriff was not bound to find that the risk of injury associated with the improper placing of a ladder on the J-section brackets for long enough for the state of instability to subsist when an employee attempted to descend the ladder was reasonably foreseeable.

22.   This approach raises a different problem from that which emerges from the sheriff's discussion of the issue of foreseeability. For the sheriff, the issue was resolved by the absence of evidence of previous accidents. For the Extra Division it was resolved by the evidence as to how in one particular respect the ladder might be misplaced as described to the sheriff. As Lord Penrose put it in para 115:
"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."

This passage must be read in the light of the court's conclusion in para 110 that it was not appropriate to consider the issue of foreseeability generally. The court decided instead to concentrate on one particular theory as to how this particular accident might be said to have been reasonably foreseeable.

Discussion

23.   I would take as my starting point the meaning of the words used in regulations 20 and 4(1). The key words are "necessary" and "suitable". Regulation 20 requires the work equipment to be stabilised by clamping or otherwise where "necessary" for the purposes of health and safety. Regulation 4(1) requires the work equipment to be "suitable" for the purpose for which it is used or provided. There is no definition of what is meant by "necessary". But regulation 4(4) provides that "suitable" in that regulation means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person. I would apply the same test to what is "necessary" for the purposes of regulation 20. As Bodey J said in Horton v Taplin Contracts Ltd [2003] ICR 179, para 10, a step is only realistically "necessary" when the mischief to be guarded against can be reasonably foreseen.
24.   But the question of foreseeablity has to be examined in its context. The aim in both regulations is the same. It is to ensure that work equipment which is made available to workers may be used by them without impairment to their safety or health: see article 3(1) of the Work Equipment Directive. This is an absolute and continuing duty, which extends to every aspect related to their work: see article 5(1) of the Framework Directive. It is in that context that the issue of foreseeability becomes relevant. The obligation is to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen. The sheriff misdirected himself on this point.
25.   Regulation 4(2) serves to underline this approach. The obligation in this paragraph implements the second paragraph of article 3(1) of the Work Equipment Directive. It requires that an assessment of risk be carried out before the work equipment is used by or provided for persons whose health or safety may be at risk. The aim is to identify the risks to the health and safety of workers if things go wrong. It is a short and simple step, for example, to appreciate that if a ladder becomes unstable or slips while it is being used the worker is likely to be injured. That is the risk that must be faced wherever and whenever a ladder is provided. The risk of injury if such events occur is reasonably foreseeable. Work equipment that is not so constructed or adapted as to eliminate that risk is not suitable within the meaning of regulation 4(1).
26.   Regulation 4(2) refers to the working conditions which exist in the premises or undertaking where the work equipment is to be used. These words must be interpreted broadly, bearing in mind that the question is whether the work equipment is suitable. The employer must take account of work that has to be done in the premises by others than those for whom the work equipment is used or provided, such as that done by the stewards referred to by the sheriff in his finding of fact 12. It was recognised long ago that the employer must take into account what in Hindle v Birtwistle [1897] 1 QB 192, 195 Wills J referred to as "the contingency of carelessness". That was a case about the duty to fence all dangerous parts of machinery under section 5 of the Factory and Workshop Act 1878: see now regulation 11 of the Work Equipment Regulations.
27.   There is a good deal of subsequent authority. In Mitchell v North British Rubber Co Ltd 1945 JC 69, 73, for example, commenting on the word "dangerous" in section 14(1) of the Factories Act 1937, Lord Justice Clerk Cooper said:
"The question is not whether the occupiers of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent on his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?"

    In John Summers & Sons Ltd v Frost [1955] AC 740, 753, referring again to the duty to "securely fence" every dangerous part of machinery, Viscount Simonds said that it was elementary that it is necessary to consider not only the risk run by a skilled and careful man who never relaxes his vigilance. At pp 765-6 Lord Reid quoted authority to the same effect, including Lord Justice Clerk Cooper's observation in Mitchell: see also Close v Steel Company of Wales Ltd [1962] AC 367.

28.   In this case the suspended ladders could be removed. Once removed they would have to be replaced if they were to be used for the purpose for which they were provided. Carelessness in their replacement was one of the risks that had to be anticipated and addressed before the defenders could be satisfied that the suspended ladders were suitable and that fixing of the ladders to the bunks by clamping or otherwise was unnecessary.
29.   Their Lordships of the Extra Division did not rely on the lack of evidence of previous accidents. But they concentrated too much on the foreseeability of one particular mechanism of instability. The risk that a person may fall from a ladder if it slips because it is not fixed securely is a known risk. The question is whether that risk was foreseeable in this case. The issue of whether there was a risk that the ladder might not be replaced properly ought to have been examined as a matter of generality. This was an exercise which the Extra Division expressly rejected: see para 110. But generality is what a risk assessment exercise of the kind referred to in regulation 4(2) requires. The scope of the exercise is no less exacting than that required at common law. The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened: Miller v South of Scotland Electricity Board 1958 SC (HL) 20, 34, per Lord Keith of Avonholm. As Lord Reid said in Hughes v Lord Advocate 1963 SC (HL) 31, 40, the fact that an accident was caused by a known source of danger but in a way that could not have been foreseen affords no defence.
30.   In my opinion it is plain, on the sheriff's findings of fact, that moveable suspended ladders were not suitable for the purpose for which they were provided because of the risk that workers would be injured if they were not replaced properly. To avoid the risk of injury it was necessary for them be clamped or otherwise fixed to the sides of the bunks to which they were to provide access. I would hold that the accident was caused by the defenders' breaches of regulations 4(1) and 20 of the Work Equipment Regulations and that, subject to the question of contributory negligence, the appellant is entitled to damages.
31.   The pursuer maintained that the defenders were also in breach of regulation 4(3) of the Work Equipment Regulations which requires every employer to ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable. As my noble and learned friend Lord Clyde has explained, it is more difficult to see how that regulation applies to the facts of this case. The obligation which is described in a single paragraph in article 3(1) of the Work Equipment Directive is separated into two parts by regulation 4(1) and regulation 4(3). Regulation 4(1) deals with the question whether the work equipment is so constructed or adapted as to be suitable for the purposes for which is used or provided. Regulation 4(3) requires equipment which is so constructed or adapted to be used only for operations for which, and under conditions for which, it is suitable. It was not suggested that a suspended ladder, if properly fixed, was not suitable as a means of access to and from the top bunk. The flaw which gave rise to the risk of injury lay in fact that the ladder was not fixed in position, not that it was being used for an operation for which a suspended ladder as such was not suitable. This was a failure in design, not a case of improper use. I would prefer to reserve my opinion on the question whether, on these facts, the defenders were in breach of regulation 4(3).
32.   Before I leave this aspect of the case, however, there is one other matter that I should mention by way of a footnote. The Extra Division was referred to Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ 412 in support of the proposition that a risk assessment was relevant to the identification of what the employer should have done: p 534. Lord Penrose said in para 109 that he had reservations about some of the comments that were made in that case about the assumptions that the employer is to make when he is considering what is required of him by regulation 4. In para 29 of his judgment Clarke LJ said that the assumption is that the work equipment will be properly operated by properly trained and instructed personnel. In para 47 Judge LJ said that in his judgment work equipment is not to be regarded as unsuitable for the purposes of the Work Equipment Regulations when injury results from inadequate control of or mishandling of the equipment which would otherwise have been safe for use by the employee seeking damages for breach of statutory duty. I think that Lord Penrose was right to draw attention to the problems that these passages might cause if they were to be taken too literally. For the reasons that I mentioned earlier, account must be taken of the risk of mishandling by the careless or inattentive worker as well as by the skilled worker who follows instructions to the letter conscientiously every time and strives never to do anything wrong. The solution to the problem that these passages raise is to be found in the defence of contributory negligence.

Contributory negligence

33.   The Extra Division dealt with this issue briefly in paras 118-120. The Sheriff held that the pursuer was wholly to blame for the accident. This was because he knew that the ladders were often removed from their retaining brackets and not replaced. So he ought to have checked the condition of the ladder before using it to descend from his bunk. He added that, as a scaffolder, the pursuer ought to have been more careful with ladders. The Extra Division rejected the pursuer's argument that the sheriff had no real basis for his finding, as no knowledge was imputed to him in the findings of fact that the ladders might not be replaced properly and that if that happened they might become dislodged when used and cause injury. But, in the absence of any clear distinction between the contributors, it reduced the pursuer's share of the blame to 50%.
34.   It is true that there is no finding in fact that the pursuer knew that, when the ladders were replaced, the person replacing them might not replace them properly. Mr Stewart founded on this point as indicating that the pursuer had no foreknowledge of the circumstances of the accident and that it was not caused to any extent by anything that he did or failed to do. On the other hand there is a finding that the pursuer knew that the ladders were removable and were frequently removed and replaced. The Sheriff refers to this in his note, adding that the pursuer accepted in cross-examination that he ought to have checked the ladder because of this. I do not think that it can be said in these circumstances that there was no basis in law for a finding of contributory negligence.
35.   As the Extra Division disagreed with the sheriff on the extent to which the pursuer was to blame for the accident, it would be open to your Lordships to alter the proportions fixed by that court: contrast Owners of the "Boy Andrew" v Owners of the "St Rognvald" 1947 SC (HL) 70, 78, where Viscount Simon said that the House should not alter the proportions fixed by the judge save in exceptional circumstances. But we are confined to issues of law in this appeal. In my opinion the Extra Division were entitled to find that the blame for this accident should be shared equally. I do not think that we are in a position to interfere with that finding which, in the end of the day, is essentially one of fact. I would adhere to the Extra Division's interlocutor on this point.

Conclusion

36.   I would allow the appeal on the question whether the defenders were in breach of their statutory duty. I would alter the Extra Division's interlocutor of 16 March 2005, as altered by its interlocutor of 6 May 2005, by substituting for the words "did not fail" in the renumbered findings of fact and law (5), (6) and (7) the word "failed", and by substituting for the renumbered findings in fact and law (8) and (9) the following:
"(8)  That the accident to the pursuer on 6 September 1999 was caused by the defenders' breach of statutory duty in terms of the Provision and Use of Work Equipment Regulations, regulations 4(1) and 20; (9) that the accident was also caused and contributed to by the pursuer's fault and negligence to the extent of 50%."

I would also recall that part of the Extra Division's interlocutor which affirmed the sheriff's interlocutor of 16 October 2003, recall the interlocutor of the sheriff, sustain the pursuer's first plea in law, repel the defenders' first to fifth and seventh pleas in law, sustain their sixth plea in law and find the pursuer entitled to 50% of the sum assessed by the Extra Division as reparation for the loss, injury and damage which the pursuer sustained due to the accident.

LORD CLYDE

My Lords,

37.   The pursuer and appellant was injured when descending from his bunk on an offshore installation. When he placed his weight on a ladder provided for his use it became dislodged from the brackets in which it was intended that it should have been placed. He claimed damages for his injury from his employers who are the respondents. His claim was founded on breaches of Regulations 4(1) and (3) and Regulation 20 of the Work Equipment Regulations 1998. The application of these regulations has been matter of dispute in the courts below, but it is now accepted, following the decision of the Extra Division, that the appellant was "at work" at the relevant time and that the ladder was "work equipment" for the purposes of the regulations.
38.   The principal issue in this case has come to be one of foreseeability. The argument proceeded upon the basis that Regulation 4(4) of the 1998 Regulations imported into both paragraphs (1) and (3) an element of reasonable foreseeability. Correspondingly it was accepted that in Regulation 20 the word "necessary" fell to be tested by what was reasonably foreseeable. The arguments before this House turned for the most part upon the approach to be adopted in the application of this test to the facts.
39.   The Sheriff made no express finding in fact on the matter of reasonable forseeability. However in his Note he expressed the view that "Given that there was no evidence about previous accidents of this kind" the insecurity of the ladder and the consequent injury to the pursuer was not reasonably foreseeable. The determining factor for him was plainly the absence of precedent. The Extra Division correctly rejected that approach. But the Division in my view also erred in defining too narrowly what the employer was required to foresee. They defined this as "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". But the precise mechanics of the accident do not require to be foreseeable for the risk of injury to be foreseeable. It is enough to find that the ladder could be removed and replaced in a way which would not be secure and that if it was thereby insecure an accident was likely to occur.
40.   Unfortunately the Division did not set out full findings in fact and findings in law, but contented themselves with detailing in their interlocutor certain amendments to the Sheriff's findings. Like the Sheriff they made no express findings on the matter of reasonable foreseeability. They held that the Sheriff was not bound to hold that the risk of injury to the appellant was reasonably foreseeable. But on the facts found by the Sheriff, and in particular facts 10, 12, 13 and 15 it is clear that such an accident was reasonably foreseeable. The ladders could be removed and replaced and when being replaced might not be neatly and securely engaged into the retaining bars. If the ladder was not so engaged it might become dislodged and fall. It is obvious that if the ladder fell the person using it was likely to be injured.
41.   In my view the appellant has succeeded in proving a breach of Regulation 4(1). Further, if the risk of injury was reasonably foreseeable where the ladder could be removed and not securely replaced, then it also follows that there was a breach of Regulation 20.
42.   I have had more difficulty with the application of Regulation 4(3). It may be that this paragraph refers to the use of work equipment in factual conditions other than those in which it was provided to be used, as, for example, in McFarlane v Ferguson Shipbuilders Ltd (2004) ScotCS 68 (16 March 2004). The misuse of a tool for a purpose other than that for which it was intended to be used would be one such case. Examples can be found in the use of a ladder which was too short to enable safe access (Neil v East Ayrshire Council (2005) ScotCS CSOH 13 (25 January 2005) or the use of the crowbar to repair a bearing in Drinnan v The Bone Group Ltd. (2005 SLT(Sh.Ct) 119). If this approach is correct then Regulation 4(3) may not be strictly applicable to the circumstances of the present case, since no one has questioned the propriety of the provision of a ladder to be used for access to or from the upper bunk. But the point was not fully explored in argument and it is not necessary to reach a concluded view on it. The pursuer succeeds on the basis of Regulations 4(1) and 20 and that is sufficient for establishment of liability on the part of the respondents.
43.   The Sheriff expressed the opinion that the accident was caused solely by the fault of the appellant. He referred in particular to his failure to check that the ladder was fully engaged in the retaining bars, a thing which the appellant evidently accepted in cross-examination he should have done. The appellant was a scaffolder, and should have been careful with ladders. He knew that the ladders were frequently removed and replaced. The Extra Division reversed the Sheriff's view on this point and expressed the opinion that if they had found that the respondents were in breach of their obligations they would have found the appellant 50% to blame for the accident.
44.   The only issue of law which arises in this connection is whether there was a basis on the facts for a finding of fault on the part of the appellant. On that matter there plainly was sufficient material in the facts to find him to some extent at fault. In my view the Extra Division correctly took the view that they could not have found him solely to blame. Plainly the accident was also caused to some extent by the fault of the respondents. There then remains the matter of apportionment. That seems to me so much a matter of fact that I would not alter the view which was expressed by the Division, albeit unnecessary for their decision on the appeal, that the blame should lie equally between the parties.
45.   Before parting with the case I should record an uncertainty which I have felt about the basis upon which the claim has been presented in the pleadings and in the argument in the courts below. Before this House it has been argued on the assumption that Regulation 4(1) placed an onus on the appellant to prove foreseeability and that the standard which he had to establish was one of a reasonable foreseeability such as the law has long recognised in civil claims for damages. That is the standard which is expressly adopted in paragraph (4). But one must also have regard to the context of the regulation and in particular the Framework Directive and the Work Equipment Directive. In Article 3.1 of the latter there can be found the immediate origin of Regulation 4(1) and presumably of Regulation 4(3). No origin for Regulation 4(4) was identified before us other than Article 5(4) of the Framework Directive. But the language of that provision immediately gives rise to difficulty. One problem is whether the exclusion of liability which this provision permits is a matter which can be built in to the duty on the employer so as to make it one of the elements in his pleading and proof which the employee must include in order to establish liability on the part of his employer. The question of onus was not canvassed before us. The appellant had undertaken that burden in his pleadings and the case has proceeded upon that basis. The appellant was prepared in his appeal to the House to open up this issue, but preferred to place his principal attack on the basis of the case as it had been presented in the courts below. The matter has accordingly in the event not been canvassed before us but to my mind it remains as a question which may yet have to be resolved.
46.   The origin of Regulation 20 appears to be in paragraph 2.6 of the Annex to the Work Equipment Directive. That paragraph uses the word "necessary" and that word has been carried forward into the Regulations. The present case has proceeded on the basis that the word imports a requirement for reasonable foreseeability. Reference was made to Horton v Taplin Contracts Ltd. [2003] ICR 179. I should wish to reserve my opinion on the precise meaning which is appropriate for the word as used in the Directive, bearing in mind that its purpose, albeit in laying down minimum safety and health requirements, is nevertheless to achieve improvements.
47.   Another question may be whether, if Article 5(4) is the basis for Regulation 4(4), it is appropriately transposed by the introduction of the concept of reasonable foreseeability. On the face of it the language of article 5(4) is significantly different. It speaks of "unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care". It may be difficult to construe the words of the Regulation to equate with this language. But the meaning and effect of Regulation 4(4) has not been argued before us.
48.   I do not do more than note these possible issues. While not expressing a view upon them I am conscious that the general purpose of the directives has been to encourage improvements to the existing levels of protection for the health and safety of workers. While they seek to lay down minimum standards it might be expected that they may not necessarily be looking to preserve standards which have existed at common law in relation to the employer's liability in reparation to his employees and which may now be too low for current requirements for safety. The degree of foresight and the definition of the level of risk may remain matters for future consideration in the general development of the law in this area towards the greater safety of the workplace and the consequently higher levels of obligation on the employer.
49.   However while these issues and others related to them have been waiting around the wings of this case, the argument has proceeded upon a more restricted front. On the assumptions upon which it has proceeded I agree that the appeal should be allowed and that an order be made in the terms proposed by my noble and learned friend Lord Hope of Craighead.

LORD SCOTT OF FOSCOTE

My Lords,

50.   I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Hope of Craighead. I agree with his reasons and conclusions. I would accordingly allow the appeal and make the order which he proposes.

LORD RODGER OF EARLSFERRY

My Lords,

51.   I have had the advantage of considering the speech of my noble and learned friend, Lord Hope of Craighead, in draft. I agree with it. Since we are differing from the decision of the Extra Division as set out in a detailed opinion, I shall state my own view very shortly.
52.   It is trite that an employer "must always have in mind, not only the careful man, but also the man who is inattentive to such a degree as can normally be expected" and that the circumstances which can reasonably be expected by an employer "include a great deal more than the staid, prudent, well-regulated conduct of men diligently attentive to their work": Smith (formerly Westwood) v National Coal Board [1967] 1 WLR 871, 873, per Lord Reid and Lyon v Don Brothers, Buist & Co 1944 JC 1, 5 per Lord Justice General Normand. Here the sheriff found that the bunk ladders were frequently removed and replaced and that the person replacing them might not replace them properly within the metal retainers. That was just the kind of casual carelessness which the defenders could be reasonably expected to foresee. The sheriff went on to hold that, if the ladder was not properly replaced, it might become dislodged and fall when being used. Again, it appears to me that the defenders could be reasonably expected to foresee that, if someone used the ladder when it had not been properly replaced in the retainers which were designed to hold it in position, it might become dislodged and fall and the person using it might be injured. In these circumstances, under regulation 20 it was the respondents' duty to ensure that the ladder was stabilised by clamping, ie by screwing it to the bed, since this was necessary to avoid the risk of injury occurring in that way. This precaution has indeed been taken since the pursuer's accident. It is true that, if the ladders had always been replaced as intended, they would have been safe. But ladders cannot be regarded as "suitable" in terms of regulation 4(1) and (4) if in practice they may well not be replaced properly, with the result that employees are liable to be injured when using them. Therefore, in the present context at least, I would not follow the approach to regulation 4(1) and (4) taken by the Court of Appeal in Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ 412. In these circumstances it was the defenders' duty under regulation 4(1) to ensure that the ladders were adapted by screwing them to the bunks so as to avoid the risk of employees falling and injuring themselves when the ladders moved while they were on them.
53.   Without modifying the sheriff's findings in fact, the Extra Division explored exactly how the accident to the pursuer might have happened. They then held, 2005 SLT 523, 540, para 115, that the sheriff had to consider whether it was reasonably foreseeable that an employee would be injured in the way they described. In my respectful view that was the wrong test. The primary purpose of the relevant regulations is not to give a ground of action to employees who are injured in some particular way but to ensure that employers take the necessary steps to prevent foreseeable harm coming to their employees in the first place. Therefore, the respondents' obligations under the regulation were triggered because it was reasonably foreseeable that an employee might injure himself while using a ladder which became dislodged and fell because it had not been replaced properly. The approach advocated by the Inner House would tend to limit the broad protection which the regulations are intended to provide.
54.   Here the pursuer has proved that he was injured when using the ladder to get down from his bunk. Before putting his weight on the ladder, it would have been only sensible for the pursuer to check that it was stable. The sheriff held that, because he had failed to do so, the accident had been caused solely by the pursuer's fault. That is tantamount to reintroducing the last opportunity rule which Parliament abolished in the Law Reform (Contributory Negligence) Act 1945. In truth, the accident was due to the fault of both parties. In a brief obiter observation, 2005 SLT 523, 541, para 120, the Extra Division indicated that, if they had been finding the defenders liable, they would have found the pursuer 50 per cent to blame for the accident. I should myself have chosen a lower percentage but do not dissent from the majority view that we ought to stick with the figure favoured by the Extra Division.
55.   For these reasons, as well as for the fuller reasons given by Lord Hope and Lord Clyde, I would allow the appeal and make the order which he proposes. I would associate myself with the questions which Lord Clyde raises about the scope of regulation 4(3).

LORD CARSWELL

My Lords,

    

56. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Hope of Craighead. I agree with his reasons and conclusions. I would accordingly allow the appeal and make the order which he proposes.