PIBULJ Articles

THE HOUSE OF LORDS GETS TO GRIPS WITH PUWER

In Robb v Salamis (M & I) Ltd [2006] UKHL 56, the House of Lords for the first time gave detailed consideration to the Provision and Use of Work Equipment Regulations 1998. Their conclusions impact not only the interpretation and application of those Regulations, but also of a broad range of health and safety legislation.

Regulation 4 and the meaning of “suitable”

As employer’s liability lawyers will be well aware, the standard of suitability sits at the heart of several of the most important obligations imposed upon employers by health and safety legislation.

In Robb, the House considered what many regard as the seminal provision enshrining the suitability standard, namely the obligation to provide “suitable” work equipment in Regulation 4 of the Provision and Use of Work Equipment Regulations 1998. The relevant wording is 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’-

(a) … means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person…

The facts of the case nicely illustrate the difficulties facing lawyers attempting to apply Regulation 4. Mr Robb was injured when, as he descended a ladder from the top bunk in his cabin on an oil production platform, the ladder came away from its retaining bars and he fell five feet to the floor.

Neither the ladder nor its mountings was in any way defective. Rather, the cause of the accident was that the ladder, which was portable, had not been properly replaced onto its mountings. Factual evidence had been adduced, and accepted, that such ladders were routinely removed and replaced when, for example, a cabin was occupied by one person only or in order more easily to make up the lower bunk. It was unlikely that a ladder would be improperly replaced and would remain misplaced for long enough to affect an employee subsequently descending it. Expert evidence had moreover been accepted to the effect that offshore installation operators tend to follow the pattern for ships, which is that ladders must be portable.

One might easily surmise that Mr Robb’s problem was not an unsuitable ladder, but rather someone’s unsuitable behaviour towards his ladder. That was, in essence, the view taken by the sheriff at first instance. A good deal of encouragement for that view can be found in the Court of Appeal’s decision in Griffiths v Vauxhall Motors [2003] EWCA Civ 412, in which it was held, among other things, that “Regulation 4, and indeed Regulation 5, are concerned with the physical condition of equipment, on the assumption that they will be properly operated by properly trained and instructed personnel.”¹ The House of Lords, however, made light work of coming to the opposite conclusion. The nub of their Lordships’ reasoning concerns the ingredient of foreseeability in the definition of “suitable” at Regulation 4(4)(a). Lord Hope explained the point as follows²:

“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 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.”

So, on the face of things, work equipment is not “suitable” for the purposes of Regulation 4 if there is some way, capable of being foreseen, in which its careful or careless use might result in avoidable injury. Lord Rodger’s analysis of the point of principle was as follows³:

“(T)he Extra Division explored exactly how the accident to the pursuer might have happened. They then held… 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 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.”

Risk assessments – employer must allow for carelessness and inattentiveness

It follows from their Lordships’ conclusions that employers carrying out risk assessments in relation to work equipment must make no assumptions to the effect that that equipment will be carefully and/or properly used. Lord Hope expressed concern that certain passages in the judgments in Griffiths suggesting that such assumptions were acceptable might cause problems “if they were taken too literally”. Rather, “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.”⁴ The appropriate mechanism for addressing careless and inattentive behaviour by employees was an allegation of contributory negligence.

The meaning of Regulation 4(3)

Their Lordships’ interpretation of Regulation 4(1) plainly will not be welcomed by employers. There is some consolation for them, however, in the approach taken by the House to Regulation 4(3). Read literally, that provision seems to impose liability whenever work equipment is used “under conditions for which it is not suitable”, whatever those “conditions” may be, and however they may have come about. So, for example, strict liability might (on that literal interpretation) be held to subsist where an employee climbs a sub-contractor’s ladder and falls when the sub-contractor stops footing it in order to answer his mobile phone. Whilst emphasising that their views were obiter, Lords Hope, Clyde and Rodger hesitated to read Regulation 4(3) in this draconian way. Lord Clyde stated⁵:

“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… The misuse of a tool for a purpose other than that for which it was intended to be used would be one such case… 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…”

When will equipment be suitable?

Ironically, the application of their Lordships’ reasoning in Robb to the question of suitability of work equipment seems itself susceptible to the hazards of an over-literal approach. The obligation in Regulation 4(1) is absolute – the employer must “ensure” the suitability of work equipment. If one takes the example of an ordinary hammer, it is entirely foreseeable that a suitably trained employee using a hammer will, in a moment of inattentiveness, hit his thumb with it, causing injury. Following the reasoning in Robb literally, the hammer is, arguably, unsuitable for its purpose. The obvious distinguishing feature is that the ladder, unlike the hammer, was capable of being adapted (by fixing it to the bunk) such that the risk of the relevant mechanism of injury was eliminated. It is hoped that courts following Robb will be astute to refer the foreseeability issue back to the words “constructed or adapted” in Regulation 4(1). A finding of unsuitability plainly ought only to be made where injury is attributable either to a defect in the construction of work equipment or (as was the case in Robb) to a failure to adapt it for safer use.

Regulation 20 – the meaning of “necessary”

A major factor in their Lordships’ application of Regulation 4 to the facts of Robb was the existence of Regulation 20, which requires employers to ensure that work equipment “is stabilised by clamping or otherwise where necessary for the purposes of health and safety”.

What does “necessary” mean for these purposes? Foreseeability is, once again, the key issue. Their Lordships approved (though not unanimously) the reasoning of Bodey J in Horton v Taplin Contracts [2003] ICR 179 to the effect that a step is only realistically “necessary” when the mischief to be guarded against can be reasonably foreseen. The facts of Horton, in which a colleague aggressively pushed over the scaffold tower upon which the claimant was standing, provide a useful example of a case in which Regulation 20 did not bite.

Do the Regulations line up with the Directive?

Lord Clyde expressed some uncertainty⁶ as to whether the whether the wording of the Framework Directive⁷ (which the Regulations seek to implement) was properly reflected in the wording of the Regulations and in their application in practice. Notably, he wondered whether the burden of proof ought rightly to rest upon the Claimant throughout, given that the Framework Directive imposes liability subject to an exclusion for employers, and does not present any additional hurdle for employees. His Lordship further expressed doubt as to whether the Framework Directive was properly transposed at all by the introduction of the concept of reasonable foreseeability. The aforementioned exclusion is worded to cover only “unusual and unforeseeable circumstances, beyond the employers’ control, or… exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.” No decision was required, or made, on these issues, but plainly the possibility of further expansion of the bounds of liability in this area cannot be ignored.

NIAZI FETTO

21^st December 2006