BACKGROUND

On Wednesday 2 July 2008  the House of Lords handed down a Decision in the case of Mr Spencer-Franks v KBR and Others. Mr Spencer Franks worked offshore as a mechanical technician and was employed by Kellog Brown and Root (KBR) onboard the Tartan Alpha platform operated by Talisman Energy (UK) Limited. ( Talisman). The Decision of all 5 Law Lords was that Mr Spencer-Franks’ appeal in this case be upheld and that his personal injury claim, brought against both his employers and the platform Operators, under the terms of the Provision and Use of Work Equipment Regulations1998, be allowed to proceed. In arriving at their decision the Law Lords have provided valuable guidance as to how the Regulations, introduced to “guarantee a better level of protection of the safety and health of workers” are to be applied in practice.

Mr Spencer-Franks was injured in an accident on 12 October 2003 whilst working for KBR on the Tartan Alpha platform situated in the Scottish sector of the North Sea, which was operated by Talisman Energy UK Ltd. He was instructed to repair a closer unit on a door of the central control room which was not operating properly. As he carried out inspection of the unit the arm suddenly released and struck him with force in the face. As a result he sustained significant injury to his teeth and face.

An action was raised against KBR and Talisman in Aberdeen Sheriff Court claiming that each was in breach of the Provision and Use of Work Equipment Regulations 1998. This action was defended. After a Hearing before Sheriff Tierney in Aberdeen, the Sheriff rejected the case against KBR on the basis that the employer had no control over this piece of work equipment and the regulation did not apply to them in this respect. The Sheriff did however hold that Talisman as the operator of the platform did have control and allowed the case to proceed to a Proof against them alone.

Agents on behalf of Mr. Spencer-Franks, and indeed Talisman the operator appealed the decision and the matter duly proceeded to be heard by the Second Division of the Court of Session. This Court took the view that the door closer was not work equipment at all and even if it was that the pursuer was not using it within the meaning of the regulations. They sought to make a fine distinction between major and minor repair work. This Court therefore rejected Mr Spencer-Franks’ appeal and his case was dismissed. Mr Spencer-Franks’ agents then proceeded with an Appeal to the House of Lords, which was considered before them on 21 and 22 April 2008.

After detailed consideration of the matter all five Law Lords confirmed that both Defendants had a duty to Mr Spencer-Franks in terms of the Provision of Work Equipment Regulations 1998 and ordered that both earlier decisions be overturned and that the matter should be referred back to the Sheriff in Aberdeen to hear a full Proof on all the evidence.

COMMENT

Whilst the Decision has significant and particular repercussions for employees working in the offshore industry, in its examination of the current case law – which deals with the application of the Provision and Use of Work Equipment Regulations 1998 to accidents in all sorts of workplaces – it has set down very important general guidelines to the lower courts. Further guidance has been provided as to how the Regulations are to be applied and the proper construction to be given to particular regulations in individual circumstances.

As far as the offshore industry is concerned, following hard on the heels of the case of Robert Robb -v- Salamis, a much clearer view is now available as to the protection offered by the current regulations to workers in the offshore industry whilst on board offshore installations.

Quantum Claims acted for both Mr Robb and Mr Spencer-Franks and their Chairman, Frank Lefevre, was delighted by this further success

“An Appeal to the House of Lords is always a daunting prospect with very severe financial consequences in the event of failure, and it is not a decision any organisation takes lightly.

Without in any way dismissing what were very serious injuries to Mr Spencer-Franks, the value of his case could never have been described as large, and certainly only a fraction of the value of Mr. Robb’s case, so the commercial realities were far from attractive.

However from our point of view we believe having supported the Robb Appeal that there were important principles to be established for the protection of workers not just in the North Sea but right across industry generally, and therefore having succeeded, this gives me an even greater degree of pleasure.

I would also like to take this opportunity to congratulate our Counsel Angus Stewart Q.C., and Jan McCall, Advocate, both of whom appeared in the Robb case as well as Mr Spencer-Franks case, and whose hard work, determination and endless support for these cases was essential. At no time during the course of the cases did their view waiver about the position, and they are to be congratulated for maintaining the courage of their convictions.”

Mr Spencer-Franks is a member of the O.I.L.C. Branch of the RMT Union which has provided support throughout this long case. The General Secretary, Mr Jake Molloy, said of the outcome

“First and foremost I’m delighted for our member who will now be rightly compensated for the horrific injuries he sustained along with the extensive and on-going dental work he has had to undergo. I’m also delighted we now have a far clearer interpretation of these regulations, which our legal team can put to good use in securing compensation for our members and workers generally who sustain injuries in this industry.

And finally I’d like to point out that this victory demonstrates the value of having a fighting trade union supporting you in times of trouble. The risk of failure was high and the costs higher, but the union and our legal team were determined and resolute throughout.”

Having masterminded a second significant victory in the development of UK Health & Safety law, Angus Stewart Q.C. Senior Counsel for Mr Spencer-Franks commented

“The House of Lords has helpfully resolved a difficulty created by an English Court of Appeal decision four years ago. Hopefully this will now mean better standards of health and safety offshore and indeed for all workers in the UK.“

In 2007 Mr Stewart led the successful prosecution of the companies responsible for the Stockline factory explosion in Glasgow in 2004.