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A lot hinged on the answer to the following question for thousands of businesses and organisations across the UK.

When is equipment used at work not work equipment for the purposes of the Provision and Use of Work Equipment Regulations 1998?

It was put before the House of Lords at a hearing on 4 February 2009, exactly one year after the same question was considered by the Court of Appeal.

The appeal

At the heart of the appeal was an issue of importance to local authorities, charitable trusts and all employers who send employees to other premises in the course of their employment where they might use equipment owned or supplied by third parties.

If, whilst at those premises and when using equipment neither supplied nor maintained by the employer, an employee is injured, is the employer then to be strictly liable for injury caused by that equipment? 

Such risks appear uninsurable and might place the employers in the position of being responsible for the condition of equipment in, for example, private dwellings although provided by third parties (by way of example, a wheelchair provided to a service user by a charity).

The facts

On 1 December 2004 the claimant, employed as a minibus driver by the defendant, Northamptonshire County Council, attended the home of a wheelchair bound patient (Mrs Cotter) to undertake a task she had completed on previous occasions.

The task was to collect and transport Mrs Cotter from her home to a day centre run by the council.  She was to be pushed down a wooden ramp placed at the back of her property next to patio doors which led from her lounge to her garden. The ramp had been provided to Mrs Cotter by the NHS and had been in situ for many years.

On the day of the accident, whilst the claimant pushed Mrs Cotter down the ramp the edge crumbled, causing an ankle injury.

The claimant sued her employer alleging negligence and breaches of statutory duties under the Manual Handling Operations Regulations 1992 and under the Provision and Use of Work Equipment Regulations 1998 (PUWER).

The First Instance Decision

The case came before His Honour Judge Metcalfe, sitting in the Northampton County Court on 13 and 14 March 2007. At the end of the first day of the Trial, the claimant withdrew all her causes of action in negligence and in relation to manual handling and proceeded on allegations under Regulation 4(1) (inadequate construction of work equipment) and Regulation 5(1) (inadequate maintenance of work equipment) PUWER which imposed strict liability on the Defendant.

The issues before the Judge were, therefore, whether or not the ramp was ‘work equipment' for the purposes of PUWER and, if so, was it either of inadequate construction or inadequately maintained.

The Judge found in the claimant's favour holding that the Regulations applied as the ramp was work equipment as defined by Regulation 2(1) and it was being used at work for the purposes of the Regulations and that, accordingly, the Defendants were in breach of Regulation 5(1) for failing to ensure the ramp was maintained and in good repair.

The Regulations

‘Work Equipment' is defined in Regulation 2(1) as follows:

• "'work equipment' means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)"

Regulation 3(2) of the Regulations provides that:

• "The requirements imposed by these Regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work."

The Court of Appeal

The defendant argued that the ramp was not ‘machinery, appliance, apparatus, tool or installation' for the purposes of Regulation 2(1) PUWER, alternatively, that the ramp was not ‘for use at work' for the purposes of the Regulations because the phrase should be given a narrow definition, such that it should not apply to equipment which the employer had no part in selecting, providing or maintaining. 

The Appellant argued that the ramp was not an installation but part of the condition and fabric of the premises and was no more an ‘installation' than was a step, a door or a flight of stairs.

It was further argued that for equipment provided by third parties and over which employers had no control to be defined as work equipment for the purposes of PUWER was manifestly unfair and would lead to startling results.
For example, if a courier was injured whilst on a regular delivery to third party premises by equipment not supplied, owned, selected, maintained or controlled by his employer, should that equipment be considered work equipment for the purposes of PUWER?

If a solicitor was injured because of the condition of a ramp which was used at the Royal Courts of Justice itself, should his/her employers be responsible?

Should an employer be liable for injury caused by a defect in the Humber Bridge which injured one of their salesmen whilst driving over it for work purposes on the basis the bridge was work equipment for the purposes of the Regulations?

Reference was made, during the course of argument to the Court of Appeal, to two authorities, Hammond v The Commissioner of Police for the Metropolis (2004) EWCA Civ 830 and PRP Architects v Precious Reed 2006 EWCA Civ 1119.

It is not proposed to review these authorities in detail save to note that, for the defendant in Smith, it was stressed that in Hammond the Court of Appeal rejected the wide construction of the phrase ‘for use at work' contended for by the claimant in that case.

In Hammond it was concluded that equipment provided by others did not fall within the definition of machinery ‘for use at work' with the Court of Appeal considering that much clearer language would be required to create wide ranging obligations on employers such that any machinery used to any extent at work would be covered by the Regulations.

In PRP, the Court of Appeal appeared to emphasise the importance of an employers control over the equipment in question in determining whether or not the equipment, in that case a lift in a common part of an office building, was work equipment.

At the Court of Appeal the Claimant in Smith contended that one should not shrink from arguing for a wide definition, despite the wide ranging consequences that would have, although in the circumstances of the case, it was argued the claimant that she did not need to contend for such a wide definition as the defendant, having assessed the service user's premises and having raised no concerns over the suitability of the ramp, in fact adopted and accepted the ramp so that, for example, if they were unhappy with it, they could have provided their own or told their employees not to use it. 

Recognising the possible wide ranging consequences of a wide definition, it was argued for the claimant that should be dealt with by the use of contractual obligations, presumably with employers seeking indemnities from those supplying equipment their employees might use at third party premises or from the occupiers.

Court of Appeal ruling

The Court of Appeal held that the question as to whether or not a particular piece of equipment being used at work was ‘work equipment' for the purposes of the PUWER depended upon a number of factors. Whilst each case was fact sensitive, the factors in this case included the following:

• the defendant had neither the ability nor right to maintain the ramp
• it had been installed by others
• it had some degree of permanence
• it was not for the exclusive use of the defendant's employees
• it could be viewed as part of the patient's premises

Taking account of these factors, the Court of Appeal held that the ramp was not ‘work equipment' for the purposes of the Regulations with Lords Justice Rimmer and Richards considering the employer should have some control over the ramp and Lord Justice Waller stating that strict liability should not be imposed if an employer did not have ‘some right ... to carry out maintenance'.

The Court of Appeal thus recognised the need to limit the scope of the Regulations in circumstances where strict liability would be imposed. The claimant sought and was granted leave to appeal.

Developments following Court of Appeal ruling

Before Smith came before their Lordships, they ruled on the case of Spencer Franks v Kellogg Brown and Root Ltd (2008) holding that a door closer located on an oil rig under the control of a third party was relevant ‘work equipment', coming within the definition of work equipment in Regulation 2(1). 

Lord Hoffman considered the answer to the difficulty of finding an employer strictly liable for defects or equipment over which it had no control must be found in Regulation 3(2), which deals with the area of an employer's responsibility, rather than by giving an artificial meaning to ‘work equipment' in Regulation 2(1).

One further notable point arising from Spencer Franks was the disapproval of the approach taken in Hammond which appeared to confine ‘work equipment' to equipment provided by the employer.

House of Lords ruling

Against the background of Spencer Franks, the Council conceded, to Lord Hope's subsequent approval, that the ramp was work equipment within Regulation 2(1) so the issue before their Lordships was whether or not it provided for use or used by the Claimant at work as required by Regulation 3(2).  If it was, then the Council would be strictly liable for a failure to maintain.

Unusually, all five Law Lords, gave full judgments with a majority, Lords Neuberger, Mance and Carswell considering that, for Regulation 3(2) to apply, the employer should have control over the equipment.  Lord Hope, too, endorsed a control concept but he favoured an approach focusing on the employer's control of the use of the equipment, rather than control over the equipment itself.

Lord Neuberger, who gave the leading majority Judgment, considered a number of factors supported his conclusion:

• Other Regulations which emphasised the control concept, e.g. Regulation 5(1), 5(2) and 6(1), also Regulation 3(3)(b).
• The fact that the concept of control over equipment would avoid employers being held liable for defects in equipment which were out of the scope of the Regulations, for example, where an employee travelling for work purposes is injured by a defective lift at a railway station or where an employee such as an accountant carrying out an audit at his employer's client's premises is injured by a defective coffee machine provided by the clients.
• The provenance of the Regulations, which were introduced to implement an EU Directive that focused on equipment selected by the employer and made available to workers.
• That it is for the legislature to assess the impact in terms of feasibility, costs and employment consequences of the view that an employer should be liable for any injury sustained by their employee in the course of their employment (unless suffered by the employees own unauthorised or unreasonable behaviour).
• That, if liability is strict, the Regulations shall be given the narrower of two possible alternative meanings.

It is interesting to note the Lords unanimously considered the application of the Regulations had to be limited particularly given their imposition of strict liability and that a majority found it constructive to consider the principle of the Directive and purpose of the Regulations expressed by Lord Hope as being to promote health and safety rather than give employees a right to compensation.

Lord Mance's test referred to the need for the equipment to be incorporated into the employer's undertaking is also worthy of note. 

For him, a nexus between the equipment and the employer's business was important and, in finding for the Council, he noted the ramp had not been incorporated into their work and they had no control of it, they neither provided nor owned it and had no responsibility to repair it.

He also considered it was part of the environment as would be a lift or chair at a third party's premises. 

He agreed that, for his ‘incorporation' test to be satisfied there had to be control, in practice, over the equipment. The need for the equipment to come within the employer's undertaking was endorsed by Lord Carswell.

Where are we now?

Post Smith, it appears that an employer will only be strictly liable under Regulation 5(1) for injury to an employee caused by failing to maintain defective work equipment at third party premises and not supplied by the employer if the employee can establish the employer had control over the equipment in question.

Further, ‘control over the equipment' must exceed simply the ability to remove it and it is not enough for an employee to establish his employer could have forbidden the use of the equipment as such an act is more properly categorised as controlling the employee's use of the equipment not the equipment itself and was not the approach favoured by a majority of their Lordships.

The correct approach to be taken when considering whether or not the Regulations apply to a piece of equipment is a two stage approach: first, decide if it is work equipment in accordance with the wide definition in Regulation 2(1) - the equipment will need to pass Lord Rodger's ‘practical useful function' test set out in Spencer Franks - and then, if it is, to consider whether or not the equipment was provided for use or used by the employee at work (Regulation 3(2)).

The answer to that depends on whether or not the employer had control over the equipment.

If not, then the equipment will not have been ‘provided for use or used at work' for the purpose of the Regulations.

It should be noted that employers will not be considered to have control of the equipment for the purposes of applying the Regulations because of the mere fact they had inspected it.

A majority of their Lordships considered employers should not be at risk of the imposition of strict liability under these Regulations because they had been careful to satisfy the requirements of other Regulations requiring them to undertake risk assessments.

Conclusion

It is worth noting that Regulation 3(2) was not considered in the Spencer Franks case as the Claimant had sued not only his employer but also the occupier of the oil rig who clearly had control over equipment on the rig. 

The employer did not raise the argument of whether or not the Regulations should apply by reason of Regulation 3(2) as there was in place an indemnity as between the employer and the occupier. The Regulation 3(2) issue was therefore left open and the Law Lords in Smith have now had the opportunity of addressing it.

So far as PRP is concerned, whilst the Law Lords in Smith did not expressly overrule that Court of Appeal Judgment, it has not been endorsed.

Were that case to be considered in the light of Smith, it might be said that the wrong test was applied as control was seen as one factor only whereas in Smith it appears to be the sole factor.

However, the outcome of that case is arguably correct if it is accepted that the employer's ability to enforce the repair covenant to correct any defect in the lift established sufficient control over the lift. No doubt the employer would contend for no control in such circumstances and one would hesitate to predict the outcome of such an argument.

The decision in Smith will be welcomed by defendants, as it limits the scope of the application of the Regulations in circumstances where the employer does not control equipment provided by a third party being used for work purposes outside their premises.

This is against the trend of recent cases exemplified by PRP Architects v Reid (2008) where the Court of Appeal held a lift used by an employee at work, but which was located outside the employer's premises, was within the Regulations, and by Spencer Franks, in which the House of Lords held that a door closer on a rig controlled by a third party was ‘work equipment'.

 

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