By David Marshall, Anthony Gold, London


Foreseeing carelessness



The so-called 'six-pack' regulations - the group of regulations that came into force in 1992 by which the UK carried into effect EU directives on health and safety at work - were supposed to lead to a seismic culture-shift. No longer would English courts be interpreting work accidents on the principles of common law negligence - effectively, strict liability was to apply to employer's liability claims.



However, in practice, the English courts have been reluctant to go that far, reintroducing the principles of negligence by the back door (see Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ 412, where it was held that work equipment was not unsuitable where it had been mishandled by the employee), or by restricting the meaning of the wording of the regulations so as to severely limit the effect (see Fytche v Wincanton Logistics PLC [2004] UKHL 31, the 'frostbite case' where the boots were defective because they let in water, but there was no liability as they had been provided only to protect the feet from a crush injury).



The recent decision of the House of Lords in the Scottish case of Robb v Salamis (M&I) Limited [2006] UKHL 56 is a welcome corrective. Mr Robb was a worker on an oil-rig. The accommodation included bunk beds. There was a ladder from the top bunk to the deck. The ladders could easily be put into place and easily removed. When properly in place, they fitted well. However, Mr Robb had climbed into the top bunk using a chair. On waking up, he stepped onto the ladder to descend. It had not been fitted correctly and it, and he, fell, causing him serious injury. Afterwards, the ladders were secured into place so that they could not be removed, which was a simple and inexpensive procedure.



The Provision and Use of Work Equipment Regulations 1998 applied. Regulation 4 requires equipment to be 'suitable' (meaning suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person). In addition, regulation 20 requires the equipment to be stabilised by clamping or otherwise where 'necessary' for the purposes of health and safety. The sheriff had found against the pursuer on the basis that the accident was not 'reasonably foreseeable', as no accident of this kind had been previously reported. The Scottish appeal court had reversed this.



The Lords found in favour of the employee. Lord Hope gave the leading judgment. He stressed that foreseeability had to be examined in context. The Work Equipment Directive created an absolute and continuing duty to ensure that equipment which is made available to workers may be used by them without impairment to their safety or health. So, Lord Hope said, 'the obligation is to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen'. And carelessness 'was one of the risks that had to be anticipated and addressed'. Without expressly over-ruling the decision, some of the conclusions of the Court of Appeal in Griffiths were doubted by the Lords 'if they were to be taken too literally'.



In allowing the appeal, the Scottish appeal court had also made a 50% reduction for contributory fault. Although high, this was upheld by the Lords. However, this was principally on the basis that the Lords did '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'. And Lord Rodger expressly said: 'I should myself have chosen a lower percentage but do not dissent from the majority view that we ought to stick with the figure.' In future, it is submitted, judges will need to be alert not to use contributory fault in effect to 'balance' a decision where a finding is made under the regulations which would not have been common law negligence.



Obiter, the Lords went on to consider two interesting points which might reflect a willingness to move even closer to the underlying intentions of the directives. First, as is common, the Management of Health and Safety at Work Regulations 1992 were not expressly relied on; it had been believed that they do not give rise to direct civil liability in their own right. Lord Hope said he reserved his position on this, but in any event said that '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 [the regulation] is to ensure, not to reduce, the protection provided for by article 3(1) of the Work Equipment Directive that [the regulation] was designed to implement' - thus encouraging a purposive approach to interpretation of the regulations.



Second, Lord Clyde went on to consider the burden of proof in such cases. Although the regulations had placed the burden on the pursuer to prove reasonable foreseeability and that was how the appeal proceeded, 'one must also have regard to the context of the regulation and in particular the [directives]'. He felt that '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'. In this appeal, this question was not addressed but 'it remains as a question which may yet have to be resolved'.



Clearly this is a signal for a future case to be argued on the basis that the regulations, in placing the burden on the claimant, do not properly implement the directive, an issue which may well end up at the European Court of Justice.



This judgment is clear guidance to the courts to consider primarily the purpose of the directives (which are to protect and improve the health and safety of workers) when construing the six-pack regulations. Reasonable foreseeability includes anticipating carelessness. Contributory fault may well apply, but there is covert disapproval of overly high awards to redress the balance. And an invitation has been opened for a future case to argue for the onus of proof being reversed, which would, in my view, be in keeping with the purpose of the directive, and be a major shift in employer's liability litigation in the UK.