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Robb v Salamis, House of Lords, 13 December 2006

10 January 2007
The issues

Contributory negligence – Health and Safety – Provision and Use of Work Equipment Regulations 1998 Regulation 4 and Regulation 20 – foreseeability – Griffiths v Vauxhall Motors

The facts

The Pursuer was working on board an oil and gas platform five miles off shore from Burghead in the Morray Firth where he was employed as a scaffolder. The Pursuer slept in a two-tier bunk equipped with suspended ladders, held in position by retaining bars providing access to the top bunks. The Pursuer slept on one of the top bunks. On the morning of the 6th September the Pursuer got into the top bunk by standing on a chair, which was not uncommon. Had he used the ladder he would have known whether the ladder was securely affixed or not. He woke at 4.30pm and made to get out of the bunk using the ladder. He sat on the bunk facing outwards and put his full weight on the right foot on the rung of the ladder. He did not check to see whether the ladder was properly engaged. As soon as his weight was on it it gave way and he fell to the floor injuring himself. Nine months after the accident the owners of the platform adapted all the ladders by drilling holes through the horizontal metal plates, fixing them. This was a straightforward, simple and inexpensive operation which it would have been reasonably practicable to carry out before the accident occurred.

The Court at first instance found that the ladders were frequently removed and replaced. Sometimes people 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 Pursuer was aware that these things happened. Sometimes, when the ladders were replaced, they were not replaced properly. The issue for the House of Lords was the liability of the Defendant, the employer, under Regulations 4 and 20 of the Work Equipment Regulations. (Regulation 4 provides that 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 inter alia. Regulation 20 provides that work equipment, or any part of work equipment, should be stabilised by clamping or otherwise where necessary for purposes of Health and Safety.)

The decision

Keys words in Regulations 20 and 4 (1) were necessary and suitable.

In respect of Regulation 4(1) the word “suitable” meant suitable in any respect which it was reasonably foreseeable would affect the health and safety of any person (see Regulation 4(4)). In respect of the use of the word “necessary” in Regulation 20 the same test should be applied. Following Horton v Taplin a step was only realistically “necessary” when the mischief to be guarded against could be reasonably foreseen.

The question of foreseeability however had to be seen in context. The aim of both Regulations was to ensure that work equipment made available to workers could be used by them without impairment to their safety or health. This was an absolute and continuing duty. It was in this context that the issue of foreseeability became relevant. The obligation was to anticipate situations which might give rise to accidents. The employer was not permitted to wait for them to happen. Regulation 4(2) underlined this approach in that it required an assessment of risk to be carried out before the work equipment was used by or provided for persons whose health or safety might be at risk. The aim was to identify the risks to the health and safety of workers if things went wrong. (The employer had to take account of work that had to be done in the premises by others and those for whom the work equipment was used or provided such as done by the stewards for example. The employer has to take into account what was referred to in the old case of Hindle v Birtwistle of “the contingency of carelessness”. 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 the fixing of the ladders to the bunks by clamping or otherwise was unnecessary. It was plain from 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 that risk it was necessary for them to be clamped or otherwise fixed to the sides of bunks to which they were to provide access. The accident had been caused by the defender’s breach of Regulations 4(1) and 20 of the Work Equipment Regulations. In respect of contributory negligence their Lordship’s would not interfere with the division of responsibility 50/50 between the Pursuer and the defender.


Lord Hope, who gave the main Judgment, passed some comment with regard to the case of Griffiths v Vauxhall Motors Ltd. In that case members of the Court of Appeal had said that the assumption behind risk assessment is that the work equipment would be properly operated by properly trained and instructed personnel and that work equipment was not to be regarded as unsuitable for the purposes of the Work Equipment Regulations when injury resulted from inadequate control of or mishandling of the equipment which would otherwise have been safe for use. Lord Hope commented that if these passages were taken too literally they would cause problems. Account had to 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 raised was to be found in the Defence of contributory negligence.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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