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Date: Thu, 14 Dec 2006 12:42:09 +1100

From: Neil Foster

Subject: House of Lords on Breach of Statutory Duty


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.


Neil Foster


Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931



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