>>>
Neil Foster 12/13/2006 6:42:09 PM >>>
Dear
Colleagues;
The
House of Lords' decision in Robb
v. Salamis (M & I) Limited (formerly known as Salamis Marine
& Industrial Limited) [2006] UKHL 56 (13 December 2006)
is very interesting for those (like me) with an interest in the
tort of Breach of Statutory Duty (BSD) in the workplace. (In my
view, even for list members in Canada, where the popular view is
that R v Saskatchewan Wheat Pool [1983] 1 SCR 205 abolished
this tort; my comment on Professor Klar's paper at the Emerging
Issues conference earlier this year reveals my reasons for
thinking that the SCC in that case left quite some room in Canada
for BSD in "industrial" legislation. I'm happy to send
a copy of my comment to anyone who hasn't got one already.)
In
Robb a worker on an oil rig went to get off his top bunk
after a sleep and the ladder at the end of the bunk, not being firmly
fixed, collapsed, and he was injured. He sued for damages based
on a breach of regs 4 and 20 of the Provision and Use of Work Equipment
Regulations 1998 (PUWER). Reg 4(1) required "work equipment"
to be "suitable", which reg 4(4) said meant "suitable
in any respect which it is reasonably foreseeable will affect the
health or safety of any person". Reg 20 required work equipment
to be "stabilised by clamping or otherwise where necessary
for the purposes of health and safety".
At
first instance and on appeal to the Extra Division of the Inner
House of the Court of Session the worker lost. Evidence was that
the ladder was often removed and replaced into its bracket (by cleaners
and other workers as well as the worker whose bunk it was), there
was no evidence of similar accidents occurring previously, the feeling
was that it was up to the worker to have checked his ladder properly.
The
House of Lords overruled and entered a verdict for the worker (while
accepting, with some reluctance, a reduction of 50% for contributory
negligence which had been set by the Extra Division in case their
ruling of no liability was wrong.) Lord Hope gave the main judgement
which all other members of the House agreed with. All agreed that
the ladder was "work equipment" and the worker was "at
work". His Lordship noted that the Regulations needed to be
interpreted in light of the European Directives which they were
expressed to be implementing. Article 5.1 of the Framework Directive
(89/391/EEC, 12 June 1989) requires that an employer "ensure
the safety and health of workers". Art 5.4 allows limitation
of an employer's responsibility "where occurrences are due
to unusual and unforeseeable circumstances, beyond the employer's
control, or to exceptional events, the consequences of which could
not have been avoided despite the exercise of all due care".
In
light of these strongly worded obligations the lower courts, his
Lordship held, had taken the wrong approach. Even on the wording
of PUWER reg 4 it was "foreseeable" that where a ladder
was able to removed and replaced, that someone might carelessly
replace it. It was clearly wrong for the sheriff at first instance
to have found that the accident was unforeseeable because there
was no evidence that this precise sort of thing had happened previously.
And the approach of the Extra Division on appeal had also been wrong,
because they focussed on the specific circumstances and asked whether
it was foreseeable that precisely this thing might happen. Instead,
the issue was whether having a ladder of this sort could foreseeably
lead to an accident of this sort. In judging foreseeability an employer
is required to take account of the "contingency of carelessness"
- para [26], quoting a case as far back as 1897 where this was recognised.
The employer should have foreseen the problem and fixed the ladder
so it could not be moved - see [30].
His
Lordship also noted that some comments made by the Court of Appeal
in an earlier case of Griffiths v Vauxhall Motors Ltd [2003]
EWCA Civ 412, which seemed to suggest that equipment was "suitable"
if it was safe when "properly operated", were arguably
wrong. I can't forbear from mentioning that in an article published
on these issues this year in (2006) 14 Tort Law Review 79-104, at
p 97 n 77, I mentioned similar doubts I had about the Griffiths
decision, and contrasted it with the different approach of a NSW
court on similar legislation. [Again, if anyone wants a copy of
the article I am happy to supply it.] Lord Clyde generally agreed
with Lord Hope but added some very interesting comments about the
relationship between the current UK regulations and the EU directives
they are meant to be implementing. At paras [45] and ff he notes
that the structure of the EU directives suggests that the obligation
imposed by current PUWER reg 4 is not quite strong enough. Whereas
under reg 4 a plaintiff has to prove the unsuitability of the equipment
by showing, on the balance of probabilities, that the equipment
could "foreseeably" lead to harm, the structure of Framework
Directive art 5.1 and 5.4 suggests (as I read his Lordship's comments
at para [45]) that the onus should be the other way around. In other
words, once the equipment has led to harm to a worker, the employer
should normally be in breach unless he or she can show the "exceptional
circumstances" mentioned in art 5.4. Since in this case the
plaintiff had been able to make his case out, the matter was not
crucial. But his Lordship suggests (particularly in para [48] where
he notes that an obligation simply replicating that found at common
law might not be adequate) that in a future case the matter might
need to be considered.
