Work equipment is under control

The House of Lords in Spencer-Franks v Kellogg Brown and Root Limited [2008] UK HL 46, in overruling the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830, has further widened and restated the scope of the definition of 'work equipment' in the Provision and Use of Work Equipment Regulations 1998 (PUWER).

Imposed strict liability

The decision in Stark v Post Office (CA 2/3/2000), decided under the predecessor of PUWER, the Provision and Use of Work Equipment Regulations 1992, marked a turning point. Mr Stark, a postman, was thrown over the handlebars of his bicycle when the front brake broke and lodged in the front wheel. There was no evidence of fault on the part of the Post Office in its programme for maintaining the bicycle. Mr Stark's claim succeeded because he established that, in framing the 1992 regulations, the draftsman had used a form of words (in regulation 6(1), now regulation 5(1) of PUWER) which had long been held to impose an absolute obligation on the employer, in other words 'strict liability' or liability without fault.

The onerous nature of strict liability has created a distortion in the litigation of claims regarding defective equipment. Employees, on the one hand, feel a sense of confidence '“ possibly false '“ because they need not prove fault in the conventional sense.

On the other hand, employers, those who provide work equipment, their insurers, and in turn, the courts feel a distinct sense of unease with the absolute obligation and have explored numerous angles to limit its seemingly onerous impact.

A similar approach by the courts was perhaps evident in Fytche v Wincanton Logistics Plc [2004] UKHL 31, where by a majority the House of Lords limited the scope of strict liability in relation to personal protective equipment.

The issues are serious: employers are uncertain as to the scope of their duties, which includes their primary duties upon pain of criminal sanction under the Health and Safety at Work etc Act 1974. Meanwhile injured employees (and their lawyers) struggle when it comes to assessing and running claims against the employer.

Not a mathematical calculation

The challenges faced in trying to chart a practical course through is perhaps put in its starkest relief in Smith v Northamptonshire County Council [2008] EWCA Civ 181, a case that is likely to take on great significance in the light of Spencer-Franks: Waller LJ, giving the judgment of the court, counselled against 'a temptation to start from the definitions [in the regulations], and then analyse them as if one can do some mathematical calculation and thus provide an answer' when determining, in a given case, whether the regulations apply so as to give rise to strict liability, favouring.

'My preferred route for testing the matter is to identify as a starting point what is alleged as the strict liability and ask oneself whether Parliament would have intended that liability to apply in a particular case,' added Waller. This is no easy task for those on the ground.

In the Scottish case of Spencer-Franks the pursuer (claimant) was employed as a mechanical technician by Kellogg Brown and Root Ltd, which in turn supplied the claimant's labour to Talisman Energy on its oil platform in the North Sea. The pursuer suffered dental injuries while repairing a sprung 'door closer' attached to the door of the platform's central control room. While he was working on the repair, the arm of the door closer struck the pursuer in the face. There was seemingly no scope for a claim based on ordinary principles of fault, so the pursuer relied on strict liability. The pursuer succeeded at first instance against Talisman only.

Delimiting employer's liability

On first appeal Talisman succeeded, principally on the basis that the door closer was not 'work equipment'. The first appeal court followed the decision in Hammond, the case of the in-house mechanic who was injured when a bolt sheared on the van he was working on. The Court of Appeal held that while the van was 'work equipment' for its driver, it was not work equipment within the Regulations so far as the repairing mechanic was concerned. His 'work equipment' was confined to what might loosely be described as the tools of his trade. This classic example of judicial limitation on strict liability and oft-followed authority was overturned by the House of Lords in Spencer-Franks.

Lord Hoffmann expressed the view (arguably at odds with his treatise on work equipment in Fytche) that the 'solution to the difficulty must be found in the provision which delimits the area of the employer's responsibility. . . rather than by giving an artificial and relativist meaning to the definition of work equipment'. A more prosaic rationale is given by Lord Rodgers. He notes that civil liability for breach of the regulations is secondary only to their main purpose to prevent injury at work, but adds that it will be difficult for employers to think constructively about risks if 'items slip in and out of being work equipment depending on what was done with them at any given moment'.

Overruling Hammond brings the definition of work equipment in PUWER in line with the scope of the Employer's Liability (Defective Equipment) Act 1969 as determined in Knowles v Liverpool City Council [1993] 1 WLR 1428.

What is work equipment?

The Lords then considered whether, having discarded the Hammond distinction, the door closer and/or the door in question could be 'work equipment' for the purposes of PUWER. They decided that the closer and the door were 'work equipment', and hence the regulations applied and the pursuer's claim succeeded. This is certainly the headline grabbing issue in the case.

Before Spencer-Franks, PRP Architects v Reid [2007] ICR 8 reflected the general view of industry and practitioners. The claim concerned an employee whose hand was trapped in a lift. Pill LJ remarked: 'If the [claimant] had descended by the stairs and her hand had become jammed in a faulty fire door, I doubt whether the regulations would have applied. A distinction is necessary between 'work equipment' on the one hand and the structure and condition of premises on the other.'

One would have thought the same argument would exclude a door closer. However, this was an obiter issue in PRP Architects and was based in part on counsel's arguments that are now flawed in the light of Spencer-Franks. That said, Pill LJ's final words on the point are notable and prescient: '[there may be] a spatial or geographical limitation upon the places at which, and hence upon the equipment to which, the duty attaches. The degree of control exercised over the equipment by the employer may also be a factor in deciding whether the equipment is being used at work within the meaning of the regulations.'

However, it is critical to note that the Lords' decision is probably confined to certain workplaces such as offshore platforms. Lord Hoffmann's view, with which the other Lords agreed, was that 'there is a good argument' that PUWER impliedly excludes 'apparatus which forms part of ordinary work premises on land' because the state of premises are treated separately in the Workplace (Health, Safety and Welfare) Regulations 1992, which in turn do not apply to an offshore platform and there is no parallel provision in the statutory regulations that applies to offshore platforms.

There is a strong argument therefore that the inclusion of a door and/or door closer and the like is confined to those workplaces where the Workplace (Health, Safety and Welfare) Regulations 1992 do not otherwise apply. Certain remarks in the opinions suggest that even where those regulations do apply there may be scope for argument. On this point, and generally, practitioners would do well to heed the words of Lord Carswell that: 'The definition of work equipment . . . is very broad indeed and one should not restrict that breadth unnecessarily . . . it may not be wise to draw too sharp a distinction and I would prefer to leave to a future case decisions on where the boundary may lie.'

Control criterion

By reason of an indemnity clause between the defendants, the Lords were denied the opportunity to determine whether, in case before them, liability should attach to both defendants. The Lords were mindful that a wide interpretation of the regulations could lead to some extraordinary results, such as where a mechanic in a private garage was injured, in the same way as Mr Hammond, while repairing a private vehicle. Lord Hoffmann doubted that the regulations were intended to impose liability on the mechanic's employer in such circumstances and hinted at the relevance of 'control' over the work equipment. Lord Mance suggested a test based not only on 'control' by the employer but whether the item being worked on had any useful, practical function within and in relation to the purposes of its business.

As it happens, the Court of Appeal may already have heard the 'appropriate case' in Smith (supra), handed down five weeks before arguments were heard in Spencer-Franks but not referred to in the ruling. The claimant in Smith was injured in the course of his duties while using a ramp built by a third party at a fourth party's property. The employer had inspected the ramp, but had no right or control over its maintenance. In any event, there was nothing upon inspection to put anybody on notice that there was anything wrong with it. The claimant therefore needed to set up a claim based on an absolute obligation, and hence PUWER. On a construction of the regulations it was held that the absolute obligation to maintain in regulation 5(1) could only apply where the employer (or other party) had a right or obligation to maintain the work equipment.

To quote Waller LJ (V-P): 'Both regulation 4 and 5 contemplate some underlying relationship, from which it would be natural to contemplate some responsibility for construction or maintenance or at the least a right to construct or maintain, before the obligation to 'ensure' suitability for performance or maintenance would apply'. In this case the only power the employer had would have been to act reasonably, if necessary, to prevent its employee using the ramp, but the claimant could not show any breach of that obligation at common law.

The approach in Smith is in tune with the 'control' analysis that is increasingly a prominent feature in determining employer liability claims. Claimants need to recognise that liability is not necessarily confined to the employer although it is not necessarily dictated by the work they are doing. Those who control workplaces should now have a clearer view of the scope of their duties in relation to PUWER, and although these are not as limited as under Hammond it is hopefully easier to determine.