EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Bonomy Lady Dorrian	[2010] CSIH 57 XA70/09 OPINION OF THE COURT delivered by LORD BONOMY Appeal from the Sheriff Court at Hamilton by JAMES JOHNSTONE Pursuer and Appellant; against AMEC CONSTRUCTION LIMITED Defenders and Respondents: _______

Pursuer and Appellant: G. Clarke, Q.C.; Bonnar & Co.

Defenders and Respondents: MacPherson, Solicitor-Advocate; Simpson & Marwick

29 June 2010

The Background

[1] The appellant injured his left leg when he tripped over one of the feet of a free-standing section of metal barrier fence which had been blown over. His accident happened in the course of his duties as a security guard on the site of the construction of a school in East Kilbride during the nightshift on 10 July 2006. The parties are agreed that, should the respondents be held responsible for his injury, appropriate damages would be £4,000 including interest to the first day of the proof (25 August 2008), with interest thereafter at the judicial rate, but subject to any deduction for contributory negligence. In the event, following proof, the sheriff at Hamilton granted degree of absolvitor on 2 April 2009. The appellant has appealed against that determination.

[2] The pursuer came upon the fallen barrier at about 3.00am in the course of a patrol of the site. When he had patrolled the site earlier, it had been upright. Unlike other similar sections of barrier fence with which it was aligned, it was not linked to the next one, so that it could be moved to permit access to a car park area through which the pursuer had just walked. Each section of fence was manufactured with a thin metal foot attached to the leg at one end, which sat at right angles to the line of the barrier, and was centred on the leg of the barrier to provide stability; the leg at the other end had no foot but was designed to connect to the metal foot end of the next section of fence. In the case of the free-standing section, that leg was inserted into a rubber boot normally used with another type of fencing.

[3] The sheriff made the following finding in relation to the circumstances leading up to the accident:

"13. The free-standing barrier fence had unknown to the pursuer been blown over by the wind in the course of the night and was lying on the ground. When the barrier fence had been erected it had been erected with the free-standing foot inserted into the end hole of a rubber boot normally used for Herras fencing. When it had been erected the rubber boot was placed at 90° to the barrier fence with the foot inserted in the rubber boot hole closest to the end of the barrier fence. When the barrier fence had blown over the movement had caused the rubber boot to rotate 90° to the left leaving the rubber boot parallel to the barrier fence and not in its original position."

The sheriff's findings on the mechanism of the accident may be summarised as follows. The rubber boot remained attached to the section of barrier fence. It was approximately six inches in height and three feet in length. After abandoning a brief unsuccessful bid to lift the section of barrier fence, the pursuer stepped between the end of the fallen barrier where the rubber boot was and the start of the line of joined barrier sections, and in so doing caught his foot on the rubber boot and hurt his leg. The sheriff also found that, if the barrier had been upright and the pursuer had not investigated and tried to lift it, he would have passed round the other end in the ordinary course of his patrol.

[4] Before the sheriff the pursuer advanced cases under Regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998 and under Regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996. In relation to the case under the Construction (Health, Safety and Welfare) Regulations 1996, the sheriff found that the pursuer had failed to prove that the defenders had the control over his work required to establish responsibility. The pursuer did not challenge that determination and confined his case before us to the Provision and Use of Work Equipment Regulations 1998.

[5] Regulations 4 and 5 of the 1998 Regulations are in these terms:

"Suitability of work equipment

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' means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.

Maintenance

5. -(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.

(2) Every employer shall ensure that where any machinery has a maintenance log, the log is kept up to date."

Although the pursuer was not employed by the defenders, there was no issue over the applicability of the Provision and Use of Work Equipment Regulations, since it was conceded by the defenders that the location of the accident was within a work area which was under their control, and the barrier fence in question was work equipment to which both Regulations 4 and 5 would apply. The issue was whether any breach had been established. In rejecting the case under Regulation 4 the sheriff held as follows:

"The fencing was in my judgment suitable for the purpose on the basis it was not reasonably foreseeable that the barrier fence would blow down and the pursuer attempt first to re-erect it in contravention of his work instruction and second then to step over and into an area at one end to take a faster route back to the office."

In rejecting the case under Regulation 5 the sheriff said this:

"The proposition advanced by the pursuer was that simply because the barrier fence fell over in windy conditions that established on a strict liability basis that the work equipment was not maintained in an efficient state. This is an unusual situation where the work equipment did not have moving parts. The work equipment was simply a static crowd control barrier fence. It was suggested that the fact the barrier fence fell over was sufficient to establish that it was not properly maintained. In addition the attachment of notices to it made it more likely to fall over. I did not hear any evidence which suggested that this particular site was an unusually windy site. The barrier fence could have been attached to the bottom section of another set of barrier fences but there was nothing to suggest that that would have prevented the barrier fence falling over either in high winds and the fact that the barrier fence had fallen over in winds had not in my judgment caused or contributed to the pursuer's fall. He had been instructed to report matters to his employers ... and did not need to step over or through the location of the fallen barrier fence."

Before us parties were agreed that there was evidence that similar barriers had previously blown over in the wind and that there was evidence that it was a windy site. That evidence came from both the pursuer (page 32 of the Appendix) and the defenders' project manager for the site, Mr Scott (pages 144, 146 and 177).

Maintenance of the Barrier Fence

[6] It is convenient to deal first of all with the case under Regulation 5. Mr Clarke Q.C. for the pursuer submitted that in his reasoning quoted above the sheriff had failed to address and answer the question whether there was a breach of Regulation 5. He had failed to deal with the submission for the pursuer that the very fact that the barrier fell over in windy conditions established a breach of Regulation 5. He had confined himself to saying that, even if the barrier had been attached to an adjacent one in accordance with its design, there was nothing to suggest that that would have prevented it falling over, and beyond that had dealt only with issues of causation by finding that the falling over of the fence had not caused or contributed to the pursuer's fall, which was the result of his failure to comply with his own employer's instructions not to do anything about any fallen barrier. Counsel submitted that, once the fence had fallen, it was not maintained in an efficient state and in efficient working order, either as a guide or directional barrier or as a gate, and the foot had moved into a dangerous tripping position. Counsel developed this submission under reference to Millar v Galashiels Gas Company 1949 SC (HL) 31, McLaughlin v Midlothian NHS Trust 2001 S.L.T. 387, Hislop v Lynx Express 2003 S.L.T. 785, Ball v Street [2005] P.I.Q.R. 362 and Stark v Post Office [2000] ICR 1013. In reliance upon Ball v Street he pointed out that the issue was not the industrial efficiency of the work equipment but its efficiency or effectiveness from the point of view of health and safety. A falling fence presented a number of hazards including tripping. On the question whether the fence was being 'used' by the pursuer, counsel pointed to the very wide interpretation given to 'use' in relation to work equipment in Given v James Watt College 2007 S.L.T. 39 and Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46, 2008 SC (HL) 159.

[7] In response Mr MacPherson for the defenders submitted that whether or not work equipment was maintained in an efficient state was a question relating to the inherent state of the equipment on which extraneous circumstances such as wind or rain had no bearing. He relied upon Green v Yorkshire Traction Company Limited [2001] EWCA Civ 1925. In that case there was no breach of the earlier Provision and Use of Work Equipment Regulations 1992, Regulation 6.1, in identical terms when, on a rainy day, some water got onto the step of a bus either from the wet clothing of the passengers or from their feet, where there was no criticism of the actual construction of the bus. That demonstrated that the Regulation did not impose an absolute obligation. It related to matters affecting the inherent state of work equipment and not to the impact of external forces such as weather. He also submitted that the mischief which befell the pursuer was different from that at which Regulation 5 was directed. That Regulation had nothing to do with tripping hazards which were addressed by Regulation 12(2) of The Workplace (Health, Safety and Welfare) Regulations 1992 and Regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996. The present case simply involved a fence falling over and thus not serving its purpose, but giving rise only to a tripping risk. It was not being "used" in the ordinary sense of that term at that stage. The authorities relied on by the pursuer did not relate to tripping hazards.

[8] Mr MacPherson did not advance any cogent reason for interpreting Regulation 5 as excluding from its ambit the risk to health and safety that is posed by a tripping hazard that stems from a failure to ensure that work equipment is maintained in an efficient state and efficient working order. The other regulations to which he referred do not apply co-extensively with the Provision and Use of Work Equipment Regulations to hazards of a different kind. In the case of each set of regulations the question is whether there is in all the circumstances a breach of the particular obligation set out in the regulation in issue. We see no reason for reading Regulation 5 as excluding its application to a tripping hazard arising as it did in this case. Nor do we find assistance in resolving the issue in this case from Green v Yorkshire Traction Company Limited which appears to be a decision very much dependent on its own particular circumstances involving a transient feature of ordinary weather conditions. The court in Green appeared to suggest that apparently absolute obligations do not necessarily give rise to liability in all circumstances. No such extreme issue arises here.

[9] The answer to the question whether Regulation 5 was breached is to be found in the authoritative statement of applicable principle in Millar v Galashiels Gas Company as subsequently further explained. In Millar Lord Reid put the matter thus at page 43:

"If the duty is proper maintenance and maintenance is defined as maintenance in efficient working order, then, once it is established that the duty goes beyond a duty to exercise care, the fact that on a particular occasion the mechanism was not in efficient working order shows that there had not been proper maintenance."

In McLaughlin v The Midlothian NHS Trust Lord Hardie applied that principle to the identical predecessor of Regulation 5 to be found in Regulation 6 of the Provision and Use of Work Equipment Regulations 1992 in deciding that the very fact that a curtain rail around a hospital bed fell and injured the pursuer established a breach of the Regulations. In Hislop v Lynx Express the pursuer was injured when, on lifting the bonnet to inspect the radiator of his vehicle, the radiator cap spontaneously blew off releasing scalding water and steam. In delivering the Opinion of the Court finding that there was a breach of the obligation in Regulation 6(1) of the 1992 Regulations, Lord Weir said:

"The proper question was whether or not the work equipment, that is the vehicle and its parts, including the radiator cap, was maintained in 'an efficient state, in efficient working order and in good repair'. The necessary inference in this case was that by reason of the cap flying off and landing on the ground without human intervention it could not be said that the working equipment was maintained to the necessary standard."

After referring to Miller v Galashiels Gas Company and Stark v Post Office, he went on to state that it was clear that the obligation of maintenance is an absolute one and applies at all times.

[10] In order to achieve the purpose of enhancing employee safety which lies behind these Regulations, it has been recognised that the word "use" should be given a wide interpretation. In Regulation 2(1) "use" is defined, in relation to work equipment, as "any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning". In the same sub-regulation "work equipment" is defined as "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)." In Given v James Watt College the Regulations were held to apply to the situation where an employee, simply passing by a malfunctioning drinks machine rather than operating it, was scalded. Lord Emslie's reasoning is set out at paragraph [32] as follows::

"On a straightforward application of the terms of Regulations 2(1) and 3(2), I consider that the drinks dispensing machine was provided by the defenders for use by inter alios canteen employees such as the pursuer, and was moreover fully operational and available for such use at the material time. Indeed, I think it might reasonably have been argued (had it been necessary to do so) that such operational availability rendered the machine continuously 'in use' as part of the means by which, throughout the working day, the canteen staff as a whole discharged their function of providing hot beverages for the benefit of customers. ... That being so, there is in my view no reason why the pursuer, as a regular staff user of the machine, should not be held entitled to take advantage of the important protection enshrined in Regulation 5(1)."

Similarly in relation to the question whether an employee repairing a door closer mechanism was using it, in Spencer-Franks Lord Rodger expressed the following view:

"In my view, the word 'repairing' in Regulation 2(1) should therefore be given its 'ordinary' meaning. In terms of that ordinary meaning, on his averments, the pursuer was engaged in 'repairing', and so 'using', the door, or door closer, when the arm of the closer sprang out and injured him."

[11] In light of these authorities the barrier was plainly in use, and also being used by the pursuer, at the time. It was part of the work equipment used to delineate parts of the construction site and to afford access to a car park area. The pursuer's patrol route took him past it. He initially tried to resurrect it.

[12] In our opinion the very fact that the barrier fence failed to remain in position and was blown over by the wind means that it was not maintained in an efficient state, in efficient working order and in good repair. The pursuer was in the vicinity of the barrier because his patrol route took him past it. Its condition led him to investigate and to continue on his route by trying to step over the rubber boot. The sheriff in his findings accepted that the rubber boot was not in its original alignment and was in a position where it presented a tripping hazard. Although the pursuer had instructions not to attempt to lift anything and on finding some matter amiss in the course of his patrol to report it immediately to his employers, he properly and inevitably went to investigate the fallen barrier. Having done so, he tried to step over the rubber boot and tripped on it. But for the fact that the barrier fence had fallen over, the pursuer would not have tried to step over the rubber boot. Thus the pursuer's accident was caused or at least materially contributed to by the failure of the defenders to maintain the barrier fence as required by Regulation 5(1).

Suitability of the Barrier Fence

[13] Mr Clarke's submission in relation to Regulation 4 was that the sheriff had set the test for reasonable foresight in Regulation 4(4) too high. Although the obligation in Regulation 4(1) is, as in Regulation 5, to "ensure", what must be ensured is that work equipment is so constructed or adapted as to be suitable for purpose, and "suitable" is defined as "suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person". No question of absolute liability arose. On the other hand Regulation 4(4) does not set a standard of foreseeability equivalent to that for common law fault. He relied on Robb v Salamis (M & I) Ltd [2006] UKHL 56, 2007 S.C.(H.L.) 71 as authority for the proposition that the reasonable foresight required by the Regulation was of the occurrence of an accident of some sort involving wind and lack of stability. The defenders were bound by Regulation 4(2), in selecting the barrier fence, to have regard to the working conditions and to the risks to the health and safety of persons which existed at the site and any additional risks posed by the use of that equipment. As was explained in Robb v Salamis (M & I) Ltd, that involves considering as a matter of generality what risks are posed by the use of the work equipment. Lord Hope of Craighead pointed out, particularly under reference to Miller v South of Scotland Electricity Board 1958 SC (HL) 20 and Hughes v Lord Advocate 1963 SC (HL) 31, that it is not a question of predicting the precise ways in which situations of risk may arise but having regard to the potential for risks to the health and safety of those on the construction site by looking broadly at the whole gamut of risks that might be anticipated.

[14] In response Mr MacPherson reminded us that the sheriff had not dealt with the argument now advanced, since the pursuer's case at proof had been that the boot had rotated 90 degrees into a different alignment in the course of the barrier falling. We do not consider that the difference between what was argued and what the sheriff found proved has a material bearing on the question of whether there was a relevant foreseeable risk in terms of Regulation 5. Mr MacPherson's principal submission was that, albeit there was a risk of a Herras fence of the type from which the rubber boot came being blown over, it was not foreseeable that a compact barrier fence to which such a boot was fitted would do so. He submitted further that there would require to be foresight of not only the risk of the fence falling over but also that someone would try to lift it, then put it down, walk on and trip over it. Such a risk was not foreseeable in this case, albeit it could be said to be so in relation to a flimsy fence. In any event, it was not foreseeable that the fallen fence would present a tripping risk that would affect health and safety. The pursuer was effectively arguing that a relevant risk existed in relation to all fencing that was not firmly fixed in situ; that would lead to the ridiculous position that free-standing fencing could not be used safely.

[15] In our opinion, the question in this case is whether the risk that the barrier fence might be blown over and thus potentially cause injury and damage was foreseeable. On the findings made by the sheriff that was plainly the case. He found as fact that at one end of a continuous barrier fence was another section of fence bearing three notices, which section of fence was not secured to the main fence. He also held that the notices on that section of fence increased the wind resistance of the section. He also made the findings quoted in paragraph [3] about the construction and adaptation of the barrier fence section. He found that the section of fence with signs attached was upright at the time the pursuer commenced his shift after 16.30 hours, and that when he returned at approximately 3 am it had been blown over by the wind in the course of the night and was lying on the ground. He also held that the movement of the barrier fence had caused the rubber boot to rotate 90 degrees to the left leaving it parallel to the barrier fence. In addition it is plain from the sheriff's discussion of the facts in his Note that, even though he considered (wrongly) that it had not been suggested that the site was an unusually windy site, the evidence showed that there was a risk of the section blowing over in windy conditions. That is hardly surprising in view of the evidence of the defenders' then project manager that such fences were known to be susceptible to being blown over on construction sites. He went as far as to say that, even if the free-standing section had been attached to the bottom section of the last in the row of barrier fences, "there was nothing to suggest that that would have prevented the barrier fence falling over either in high winds...".

[16] These various findings set out circumstances in which a proper risk assessment by the defenders would have identified the risk that the free-standing section of fence might blow over and that that could affect the health and safety of any person in the vicinity. As Lord Hope said at paragraph 24 of Robb v Salamis (M & I) Ltd: "The obligation is to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen." The issue was not whether the particular tripping hazard that was ultimately posed was foreseeable. Had the defenders had regard to the risk presented to the health and safety of persons on the site in selecting work equipment so constructed or adapted as to be suitable as a barrier and gate where the free-standing barrier fence was, then they would not have selected the section of barrier fence constructed and adapted as it was. Had they nevertheless done so, then they would have selected work equipment which it was reasonably foreseeable would pose a risk to the health or safety of persons on the site, all in breach of Regulation 4. Therefore their failure to comply with their obligation under Regulation 4 caused or materially contributed to the pursuer's accident.

Contributory Negligence

[17] Having found that the pursuer caused the accident, the sheriff confined his hypothetical consideration of contributory negligence to the pursuer's failure to keep a proper look out for his own safety and failure to appreciate where he was putting his feet. In his judgment that would have "attributed (sic) to a high finding of contributory negligence of 60%". It is surprising that he did not view the question of contributory negligence more broadly, since not only would the question of keeping a proper lookout in stepping over the rubber boot arise, but the question whether passing the barrier at that point at all displayed a measure of contributory negligence would also arise.

[18] Having regard to the factors to which the sheriff confined his attention, we consider that the finding of 60% was excessive. In our view, an appropriate deduction to reflect contributory negligence would be 40%.

Interlocutor

[19] Counsel for the pursuer proposed a number of amendments to the findings in fact and the findings in fact and law. Some were non-contentious and others were disputed. In light of our discussion of the issues in the case, we consider it appropriate to make a number of revisals to the findings. To the end of finding in fact 6 should be added:

"These fences had previously blown over in the wind. The construction site was subject to high winds, and there had been extremely high winds that weekend."

These revisals reflect evidence from the pursuer and the defenders' project manager. To bring finding in fact 10 into line with what parties agreed was the evidence, the words "in the event of finding ... report that matter to" should be deleted and "he should not attempt to lift anything and should phone" should be substituted. Consistently with that, finding in fact 14 should be amended by deleting the words "rectify matters" and substituting "lift things".

[20] We shall amend the findings in fact and law as follows. The second and third sentences of finding in fact and law 2 should be deleted and substituted with:

"The barrier fence was not suitable in terms of Regulation 4 of the Provision and Use of Work Equipment Regulations 1998. It was used in conditions where it was liable to fall over. It was reasonably foreseeable that the fence might fall down."

We shall delete finding in fact and law 4, renumber finding in fact and law 3 as 4 and insert new findings in fact and law 3, 5 and 6 as follows:

"3. The barrier fence was not maintained in an efficient state and efficient working order and in good repair from the point of view of health and safety, and the defenders were in breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998.

5. The defenders' breach of Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 caused or materially contributed to the pursuer's accident.

6. The defenders' breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 caused or materially contributed to the pursuer's accident.

7. The pursuer's accident was also materially contributed to by the extent of 40% by his own fault in failing to keep a good look out for his own safety."

[21] We shall accordingly allow the appeal, recall the interlocutor of the sheriff of 2 April 2009, repel the first to fourth pleas-in-law for the defenders, sustain the second plea-in-law for the pursuer and the fifth and sixth pleas-in-law for the defenders, and grant decree against the defenders for payment to the pursuer of £2,400 with interest thereon at 8% per annum from 25 August 2008 until payment.