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Judgments - Smith (Appellant) v Northamptonshire County Council (Respondents)

HOUSE OF LORDS

SESSION 2008-09

[2009] UKHL 27

on appeal from:[2008] EWCA Civ 181

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Smith (Appellant) v Northamptonshire County Council (Respondents)

Appellate Committee

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Mance

Lord Neuberger of Abbotsbury

Counsel

Appellant:

Patrick Limb QC

Tom Panton

(Instructed by Thompsons)

Respondents:

Hugh Preston

(Instructed by Shoosmiths)

Hearing date:

4 FEBRUARY 2009

ON

WEDNESDAY 20 MAY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Smith (Appellant) v Northamptonshire County Council (Respondents)

[2009] UKHL 27

LORD HOPE OF CRAIGHEAD

My Lords,

1.  The appellant, Mrs Jean Margaret Smith, was employed by the respondents (“the council”) as a driver and carer. As part of her job she was required to collect people who were in need of care from their homes and take them by minibus to a day centre. One of those whom she had to collect was Mrs Gina Cotter, who was confined to a wheelchair. To get her out of her house the appellant had to take her down a wooden ramp outside the doors which led from the living room to a patio. It had been placed there about ten years earlier by the National Health Service. This was a task that she performed many times without incident. But as she was doing this on 1 December 2004 an edge of the ramp crumbled beneath her foot, causing her to stumble and sustain injury.

2.  The appellant raised proceedings against the council, claiming damages. Her case was pleaded on three bases: breach of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306), breach of the Manual Handling Operations Regulations 1992 (SI 1992/2793) and common law negligence. At the end of the first day of the hearing before the trial judge, Judge Metcalf, the allegations of breach of the 1992 Regulations and of common law negligence were withdrawn. The case proceeded on the remaining allegation that the council was in breach of the 1998 Regulations.

3.  The question which the judge had to decide was whether the1998 Regulations applied in this case. It was not disputed that, if they did, the council was in breach of them as the ramp was defective and the regime which the Regulations impose is one of strict liability. The judge held that they did apply because the ramp was “work equipment” as defined by regulation 2(1) and it was being “used at work” within regulation 3(1). It followed that there was a breach of regulation 5(1). The council appealed, and the Court of Appeal allowed the appeal: [2008] EWCA Civ 181; [2008] ICR 826. It held that the ramp was not work equipment used by the appellant at work for the purposes of the Regulations. Waller LJ said that each case will turn on its own facts. The most significant factors in this case were that the ramp had been installed by people other than the council’s own employees, that the council had no ability to maintain it and that in ordinary parlance it was part of Mrs Cotter’s premises: para 34. The appellant now appeals against that decision to this House.

4.  While it is, of course, true that each case will turn on its own facts, her appeal raises a question of general public importance. How are the provisions of the 1998 Regulations which determine its application to be construed in a case of this kind without producing results that, having regard to the purpose they were intended to serve, are excessively burdensome? It is important to bear in mind however that the purpose of the Regulations is to promote health and safety. In other words, they are there primarily to promote a culture of good practice with a view to preventing injury.

The 1998 Regulations

5.  The head note to the 1998 Regulations states that they were made by the Secretary of State in the exercise of powers conferred on him by the Health and Safety at Work, etc Act 1974 and for the purpose of giving effect without modifications to proposals submitted to him by the Health and Safety Commission under section 11(2)(d) of that Act. Section 1(1) of the Act provides that the provisions of Part I, which includes the power to make regulations under section 14, shall have effect with a view to (a) securing the health, safety and welfare of persons at work and (b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work. In making its proposals the Health and Safety Commission was guided by the need to implement Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (“the Equipment Directive”). The Regulations are arranged into five Parts. Part I, which is headed “Introduction", is the Part that is under scrutiny in this appeal. It consists of three regulations only. Among them is regulation 2 which is headed “Interpretation", and regulation 3 which is headed “Application". Regulation 2(1) defines the expressions “use” and “work equipment” in these terms:

“ ‘use’ in relation to work equipment means any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning;

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

These definitions are qualified in the usual way by the words “unless the context otherwise requires” at the beginning of the subsection, and by its concluding words which state that related expressions shall be construed accordingly.

6.  Regulation 3 contains a series of paragraphs which deal with how the Regulations are to be applied. Those that are relevant to this case are regulations 3(2) and (3), which are in these terms:

“(2) 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 at his work.

(3) The requirements imposed by these Regulations shall also apply -

(a) to a self employed person, in respect of work equipment he uses at work;

(b) subject to paragraph (5), to a person who has control to any extent of -

(i) work equipment;

(ii) a person at work who uses or supervises or manages the use of work equipment; or

(iii) the way in which work equipment is used at work,

and to the extent of his control.”

Regulation 3(5) states that the requirements imposed by the Regulations shall not apply to a person in respect of work equipment supplied by him by way of sale, agreement for sale or hire-purchase agreement.

7.  Part II, which is headed “General", contains a series of regulations dealing with, among other things, the suitability of work equipment (regulation 4), maintenance (regulation 5) and inspection (regulation 6). Each of these three regulations is introduced by the words “Every employer shall ensure". Regulation 4 states, inter alia:

“(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 risk to 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 equipment.”

Regulation 5 states:

“(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.”

Parts III and IV impose similar duties in regard to mobile work equipment and power presses.

8.  In each case the steps that the regulations prescribe must be taken. It is no defence to say that it was impossible to achieve it because there was a latent defect or because its achievement was not reasonably practicable. In Stark v Post Office [2000] ICR 1013, 1023, Waller LJ said of regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 (SI 1992/2932), which was in the same terms as regulation 5(1) of the 1998 Regulations which has replaced it, that it imposed an absolute obligation. In doing so he followed a long line of authority to the same effect: Smith v Cammell Laird & Co Ltd [1940] AC 242; Galashiels Gas Co Ltd v Millar [1949] AC 275; Hamilton v National Coal Board [1960] AC 633; see also Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107. This point is not now disputed, but it forms an important part of the background.

The facts

9.  The appellant had worked for the council for many years. In the course of her employment with them she had been taking Mrs Cotter to the day centre three times a week for about eight years before the accident. Her duties involved wheeling Mrs Cotter from the living room to the patio, then through the back garden into the bus which took her to the day centre. Steps led down from the living room to the patio. A ramp had been provided to assist the movement of the wheelchair over these steps. If it had not been there the council would have had to provide the appellant with some other means of achieving this.

10.  The ramp had been installed by the NHS about ten years earlier following an assessment of Mrs Cotter’s requirements. It was left outside and was used very frequently. The council carried out their own assessment of it for the purpose of ensuring Mrs Cotter’s safety. This was also done to discharge their obligations to the appellant under the Manual Handling Operations Regulations 1992 and at common law. They tested its stability. An employee walked up and down it and stood on it, jiggling up and down to check whether it was sturdy. Their employees were trained to perform a visual check of the ramp every time they visited Mrs Cotter’s premises. It was not found to have been in an obvious state of disrepair prior to the accident. This, then, is a case of a latent defect. But that affords no defence to a case brought under regulation 5(1).

11.  The judge held that the ramp was equipment that was used by the appellant in the process of carrying out her work, which was the safe transporting of an invalid to the minibus. It was, he said, a necessary, indeed essential, piece of equipment: para 38. The transporting of someone in a wheelchair was the central element of the appellant’s work. She used the ramp in order to carry out her work: para 39. He made these further findings in paras 40 and 41:

“40. In other words, it was work equipment in the form of an appliance or apparatus which was used in the course of her work to transport. In fact, the defendants did also retain some considerable degree of control even though they did not own the premises or the ramp. Even though it had not been supplied by them, they took it upon themselves, as part of their duty in carrying out the work that the claimant was required to do, to inspect, to assess and to receive reports in the event of any problem.

41. The purpose behind that assessment was to ensure that Mrs Cotter was safely transported. An integral part of that safe transportation, which was the work of the claimant, was the movement down that ramp, using the ramp as a piece of equipment, in order to get Mrs Cotter to the bus properly. The nature of the claimant’s work meant that inevitably the equipment or apparatus was not located at her work place on the defendants’ premises.”

Having made these findings he said that he was satisfied that there had been a breach of regulation 5(1).

The issues

12.  The application of the 1998 Regulations to this case requires two questions to be answered. First, was the ramp “work equipment” within the meaning of that expression as defined by regulation 2(1)? Secondly, was it “provided for use or used by” the appellant “at work” as regulation 3(2) requires?

13.  The judge held in para 37 that the ramp was an item of work equipment. It was, he said, an appliance or a piece of apparatus or possibly an installation. He did not think that there would have been any debate about this if the accident had occurred at a factory of the employer. He also concluded that it was “for use at work", for the reasons that he set out in paras 39 to 41 of his judgment. In the Court of Appeal it was submitted that there must be some limitation on the employer’s strict liability. It was pointed out that, on a very wide construction of the language, a courier driving his van to deliver a parcel the other side of a bridge which collapses could succeed against his employer on the basis that the bridge was an installation being used by the employee at work. Waller LJ said in para 13 that he would accept the council’s submission that it would be unlikely that the 1998 Regulations should be construed in the very wide way that that example would entail. He found support for that view in Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830; [2004] ICR 1467 and PRP Architects v Reid [2006] EWCA Civ 1119; [2007] ICR 78. In para 31 he said that in his view Parliament would not have contemplated that either regulation 4 or regulation 5 should impose strict liability on the council in relation to the ramp that the appellant was using when she was at Mrs Cotter’s house.

14.  To reach that result Waller LJ said that regulations 4 and 5 both contemplate some underlying relationship, from which it would be natural to contemplate some responsibility for construction or maintenance [his emphasis] or at the least a right to construct or maintain, before the obligation to “ensure” suitability for performance or maintenance would apply. Richards LJ said in para 38 that he would place particular emphasis on the concept of control in the present context. It seemed to him that the absence of any control by the council over the ramp was a factor militating strongly against their being strictly liable for its construction and maintenance. Rimer LJ was of the same opinion. In para 39 he observed that the difficulty raised by the 1998 Regulations lay in the fact that, considered on its own, the definition of “work equipment” in regulations 2(1) and 3(2) is capable of extending to items which the peripatetic employee may use but of which the employer will often be unaware. In para 40 he said that an employer could only be expected to discharge the obligations that the Regulations impose in relation to equipment which he is, or should be, aware his employee will be using and over which he has the necessary control to enable him to perform them. In para 42 he said that, as the council had no control over the ramp sufficient to enable them to perform the obligations imposed by the Regulations in respect of it, it was not “work equipment” at all.

15.  The Court of Appeal’s reasoning was directed to the implications of imposing strict liability on the council for the ramp’s construction and maintenance. The structure of the Regulations indicates that the answer to the question whether the obligations they impose do not apply where the employer cannot be expected to perform them must lie in the definition of “work equipment” in regulation 2(1) and its application to the facts under regulation 3(2). Regulation 3(2) states that the requirements imposed by the Regulations on an employer in respect of work equipment “shall apply” in the circumstances that it describes. If the court finds that the machinery, appliance, apparatus, tool or installation is work equipment and that the requirements of regulation 3(2) are satisfied, it has no option but to find that the employer must perform the regulations in Part II for breach of which he is strictly liable. Any limitation on that strict liability must be found therefore in an analysis of the wording of regulations 2(1) and 3(2) bearing in mind, as I said at the outset, that the purpose of the Regulations is to promote a culture of good practice with a view to preventing injury.

Regulation 2(1)

16.  In Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46; [2008] ICR 863, para 21, Lord Hoffmann said the answer to the difficulty of finding an employer strictly liable for defects in equipment over which he had no control must be found in regulation 3(2), which delimits the area of the employer’s responsibility, rather than by giving an artificial and relativist meaning to the definition of work equipment in regulation 2(1). Mr Preston said that, in the light of this guidance, he accepted that qualifications as to the scope of the duty should properly be implied at the stage of considering regulation 3(2). So he conceded that the ramp in question in this case was “work equipment” within the meaning of regulation 2(1). As he put it, both the first and second limbs of that definition were satisfied. In other words the ramp could properly be described as an apparatus, appliance or installation, and it could also be said to be “for use at work". I think that this concession was properly made. The ramp was there to be used by anyone when taking Mrs Cotter in and out of her house in her wheelchair, including people like the appellant who were doing this as part of their work.

17.  This concession has important implications when one comes to consider the application of regulation 3(2) to the facts of this case. Leaving that point aside for the moment, however, further thought needs to be given to the way the definition of “work equipment” should be approached in the case of a peripatetic employee such as the appellant. As Lord Rodger of Earlsferry said in Spencer-Franks v Kellogg Brown and Root Ltd [2008] ICR 836, para 49, the Regulations are intended to cover all kinds of undertakings. The situation which gives rise to difficulty is of an employee whose place of work is not confined to the employer’s premises or a place over which the employer has direct control because he is in charge of what is being done there. The nature of the employer’s undertaking may involve sending employees to work elsewhere. Equipment may be needed to enable them to get to and from the remote location. It may also be needed to enable them to carry out the work that they are employed to do when they get there. Where his undertaking is of that kind the employer must, as Lord Rodger put it in Spencer-Franks, para 35, think constructively and assess the risks to which his employees may be subject. He must be able to determine what items constitute work equipment and what do not. But if injuries are to be prevented, the best guide as to what should be included in the assessment will be the work that the employee is required to do and what he needs to do it rather than who owns or controls the equipment.

18.  In some cases the peripatetic employee will be using equipment which has been provided for him by the employer. That was the position in Stark v Post Office [2000] ICR 1013. The plaintiff, who was employed as a delivery postman was riding a delivery bicycle provided for him by the Post Office. There was no dispute that this was work equipment with the meaning of the definition of that expression in the 1992 Regulations. The same result will follow where the employee is provided by the employer with the tools or other equipment that he needs to carry out his work in the remote location. That would have been the position if, for example, the council had provided the appellant with her own ramp for her to carry around to her places of work in the minibus. But the definition of “work equipment” is not confined to cases of that kind. It makes no mention of the person by whom the work equipment is provided. So it can include cases where the work equipment is already in the remote location and belongs to or is controlled by someone else. It can extend to work equipment which the worker himself has provided, such as the ladder in Mason v Satelcom Ltd [2008] EWCA Civ 494, [2008] ICR 971 where the appellant was left to find and use whatever ladder was available.

19.  In Hammond v Commissioner of Police of the Metropolis [2004] ICR 1467 a mechanic employed by the first defendant, the Metropolitan Police Commissioner, was working on the wheel of a police dog van belonging to the second defendant, the Metropolitan Police Authority, when a wheel bolt sheered and injured him. He was described as the police equivalent of the AA man. The Court of Appeal was troubled by the fact that the van was not the property of the mechanic’s employer, the first defendant. It held that the Regulations did not extend to things that the employee was working on, as distinct from the equipment which he was using to undertake his work: per May LJ, para 25. He said that the ambit of the expression “work equipment” was determined by the equivalent of regulation 3 in the 1992 Regulations It indicated that the Regulations were concerned with what might be loosely be described as the tools of the trade provided by an employer to an employee to carry out his work: para 24. This approach to the problem, which confines the expression to equipment that has been provided by the employer, was disapproved in Spencer-Franks v Kellogg Brown and Root Ltd [2008] ICR 836.

20.  In Spencer-Franks v Kellogg Brown and Root Ltd the pursuer was one of a number of workers sent by a company which supplies services to the offshore oil industry to work on a platform in the North Sea. The case provides a good example of a situation where the employees of a variety of employers are sent to work on other premises, as happens where a number of sub-contractors are working on a building site. The pursuer was asked to inspect and repair the closer on the door of the central control room. This was a piece of equipment which performed a useful function to which the expression “use” in the phrase “for use at work” in regulation 2(1) could be applied. As Lord Hoffmann explained in para 11, if a simple approach was taken to the question whether the door closer was work equipment the answer was clear. Everyone using the control room was using it for the purposes of their work, as they used it every time they used the door to enter or leave the control room. Having regard to the terms of the Equipment Directive and the main purpose of the Regulations, which was not to give employees a right to damages but to prevent them being injured in the first place, Lord Rodger of Earlsferry said that he saw no reason to limit the ordinary language of the definition of work equipment in order to exclude it: paras 31-34.

21.  Finding a satisfactory limit to the scope of the duty imposed by the Regulations is not easy, for the reasons given in that case by my noble and learned friends Lord Mance and Lord Neuberger of Abbotsbury. As Lord Neuberger said in para 98, it was not necessary to decide in Spencer-Franks v Kellogg Brown and Root Ltd what its limits are. The following points can however be made about the definition of “work equipment” in regulation 2(1). First, it must be approached without regard to the tests that are set out in regulation 3. Deciding whether or not something is work equipment is a separate exercise from that of applying the definition to the cases described in regulation 3. As Lord Hoffmann put it in Spencer-Franks v Kellogg Brown and Root Ltd, para 19, you must first decide whether some apparatus is work equipment or not and then you decide whether the regulations apply in respect of it. Then there are the words in regulation 2(1) “any machinery, appliance, apparatus, tool or installation". They refer to items that can be expected to perform a useful function within and in relation to the employer’s business: Lord Rodger, para 51; Lord Mance, para 86. Their scope is limited by the words “for use at work (whether exclusively or not)". The words “for use at work” indicate that the item must have some practical purpose in connection with work. This excludes items that are for storage only or for decoration for example, or which cannot be “used” at all such as the floors, walls or ceilings of a building. Whether those words are satisfied will depend on what is done in or by the undertaking that is under consideration. But there is nothing in the definition that restricts its scope to items that are located within that undertaking’s own premises or to things that are provided by the employer. He must take into consideration items for use at work, wherever they are located and by whomsoever they are provided, that may be used at their work by his employees for the purposes of his undertaking wherever it is carried on.

 
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