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Session 2007 - 08 Publications on the Internet Judgments PDF Print Version 
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| Judgments - Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland)
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HOUSE OF LORDS SESSION 2007-08 [2008] UKHL 46 on appeal from: [2007] CSIH 23
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland) Appellate Committee Lord Hoffmann Lord Rodger of Earlsferry Lord Carswell Lord Mance Lord Neuberger of Abbotsbury Counsel Appellants: Angus Stewart QC Jan McCall (Instructed by Drummond Miller LLP ) Respondents: Colin Macaulay QC Roderick Dunlop (Instructed by HBM Sayers) Hearing date: 21 and 22 APRIL 2008 ON WEDNESDAY 2 JULY 2008 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland) [2008] UKHL 46 LORD HOFFMANN My Lords, 1. In 2003 the pursuer Mr Spencer-Franks was employed as a mechanical technician by Kellogg Brown and Root Ltd (“KBR”), then a subsidiary of Halliburton, the multi-national company based in Texas which, among other things, supplies services to the offshore oil industry. KBR contracted to supply workers to operate the Tartan Alpha platform in the Scottish sector of the North Sea, which was operated by Talisman Energy (UK) Ltd (“Talisman”), a subsidiary of a Canadian oil company. The pursuer was one of the workers which KBR supplied to work on the platform. 2. On 12 October 2003 the closer on the door of the central control room was not working properly and the appellant was asked to inspect and repair it. The closer consists of a spring mechanism attached to the door and connected by a linkage arm to the door frame. According to the pursuer’s averments, which must for the purposes of this appeal be taken as true, he decided to remove the closer and take it to the workshop for repair. Before doing so, he tried to assess the level of tension in the linkage arm by backing off by half a turn the screw which held it to the door frame. This should not have disengaged the screw. In fact the screw pulled out and the arm struck the pursuer in the face. He lost four teeth which had to be replaced by implants. 3. The pursuer raised an action against KBR and Talisman in the sheriff court in Aberdeen, claiming that each of them had been in breach of its obligations under the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (“the equipment regulations”). These regulations replaced the Provision and Use of Work Equipment Regulations (SI 1992/2932) (“the 1992 regulations”) and they were both intended to implement Council Directive 89/655/EEC (“the equipment directive”). 4. Regulation 3 of the equipment regulations delimits the scope of the duties which they create: “(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 of his at work. (3) The requirements imposed by these Regulations on an employer shall also apply…(b)…to a person who has control to any extent of - (i) work equipment…to the extent of his control.” 5. The pursuer says, first, that the door closer was “work equipment". This is defined by regulation 2(1) as— “any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)” The pursuer says that the door closer was a piece of machinery or apparatus for use at work. People working on the platform were using it every time they entered or left the control room. Secondly, the pursuer says that the duties imposed on his employer by regulation 3(2) apply to the door closer because it was “used” by an employee at work. Regulation 2(1) defines “use” to include any activity involving work equipment, including “repairing…maintaining, servicing". So it was being used by the pursuer as repairer and by any other KBR employees who went through the door in the course of their work. 6. The relevant substantive duties are in Regulation 4, which provides: “(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…. (4) In this regulation ‘suitable’ means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.” 7. For the purpose of this regulation, “employer” is defined in article 2(1) to include a person who is not the employer but upon whom duties are imposed by regulation 3(3)(b). There is no dispute that the liability created by this regulation is strict. The employer must “ensure” that the work equipment is suitable. It is not enough to take reasonable steps to do so. The pursuer says that the door closer was work equipment and that it was not suitable for use in a way which would foreseeably affect his safety. It was attached in such a way that the arm would fly off unexpectedly and hit one in the face. 8. That, in summary, is the pursuer’s case. The defenders took pleas to the relevancy on the ground that the door closer could not be work equipment within the meaning of the regulations. The sheriff sustained the plea of KBR, the employer, on the ground that although the door closer was “work equipment", the employer had no control over it and the regulations therefore did not impose responsibility upon it. On the other hand, Talisman, the operator, did have control. He therefore repelled their plea to the relevancy and allowed the pursuer’s proof. 9. Both the pursuer and Talisman appealed. The Second Division of the Court of Session, took the view that the door closer was not “work equipment” or, even if it was, that the pursuer was not “using” it within the meaning of the regulations. They therefore dismissed the pursuer’s appeal and allowed KBR’s appeal. The pursuer appeals to your Lordships’ House. 10. My Lords, let us first consider the question of whether the door closer was work equipment. The equipment regulations were intended, as I have said, to implement the equipment Directive, although, as the explanatory note points out, the provisions of regulation 3(3) to (5), which place duties upon non-employers having control of work equipment, go beyond what the Directive requires. The definition of work equipment in the Directive is “any machine, apparatus, tool or installation used at work.” The definition in the equipment regulations, which I have already quoted, uses the words “for use at work.” I imagine the change was made to forestall literalist arguments that a defective machine which caused injury while it was not actually being used was not work equipment. The domestic definition requires one to ascertain the purpose of the apparatus etc. What is it for? If it is for use at work, then it is work equipment. 11. If one takes this simple approach, then the answer seems to me to be clear. Everyone using the control room was using it for the purposes of their work. They used the door to enter or leave the control room. And in doing so, they used the closer. Its purpose was for use at work. Giving the definition its ordinary meaning, the closer was work equipment. The question is whether it can be excluded by some implied qualification. 12. One possibility is that the equipment regulations impliedly exclude apparatus which forms part of the premises upon which the work takes place. The state of premises is treated separately from equipment by the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004). In the case of ordinary work premises on land, this might be a good argument. But I do not think it applies to equipment which is attached to an offshore platform. Regulation 5(1) of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 (SI 1976/1019) provided in general terms that — “All parts of every offshore installation and its equipment shall be so maintained as to ensure the safety of the installation and the safety and health of the persons thereon.” 13. This made no distinction between the fabric of the installation and the equipment. The duty applied equally to both. And the liability which it creates is strict: Breslin v Britoil plc 1992 SLT 414. After the equipment directive came into force, the duties of the owners or operators of offshore installations were divided between two regulations. One is the Offshore Installations and Wells (Design and Construction etc) Regulations 1996 (SI 1996/913), which deals principally with the duty to maintain the “integrity” (defined as “structural soundness and strength, stability and…buoyancy” of the installation) but also has certain “additional requirements” similar to those applicable to workplaces on shore. None of these duties deal with equipment. The other source of duty is the equipment regulations. 14. This seems to me to point to an intention that the equipment regulations were to apply to all equipment on an offshore installation. In the nature of things, a lot of such equipment is going to be bolted or otherwise attached to the platform, but I do not think that this prevents it from being work equipment if it is for use at work. The same may be said of the lift which was (rightly, I think) held to be work equipment in PRP Architects v Reid [2004] EWCA Civ 1119; [2007] ICR 78. The Framework Directive 89/391/EEC “on the introduction of measures to encourage improvements in the safety and health of workers at work", which gave rise to individual directives such as the equipment directive, said that the directives were needed “to guarantee a better level of protection of the safety and health of workers". It went on to say: “This Directive does not justify any reduction in levels of protection already achieved in individual Member States, the Member States being committed, under the Treaty, to encouraging improvements in conditions in this area.” 15. Thus the Framework Directive imposed a European ratchet upon levels of protection for workers and it would in my opinion be wrong to construe the 1996 Offshore Installations regulations and the equipment regulations as giving workers on offshore installations any less protection than they had under the 1976 Offshore Installations regulations. It is not suggested that a mechanical defect in the door closer falls within the Offshore Installations regulations and I therefore see no need to limit the ordinary language of the definition of work equipment in the equipment regulations in order to exclude it. 16. An alterative argument, which found favour in the Court of Session, was based upon the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830; [2004] ICR 1467. In that case the claimant was a mechanic employed by the Commissioner of Police. He was working on the wheel of a police dog van when the shearing of a wheel bolt caused him to suffer injury. The question was whether the van was “work equipment” within the meaning of the 1992 regulations, which had its own definition of “work equipment": “any machinery, appliance, apparatus or tool and any assembly of components which, in order to achieve a common end, are arranged and controlled so that they function as a whole.” 17. The scope of the duty was defined by regulation 4(1), which was in similar terms to regulation 3(2) of the 1998 equipment regulations: “The requirements imposed by these Regulations on an employer shall apply in respect of work equipment provided for use or used by any of his employees who is at work…” 18. Giving the leading judgment, May LJ said, at pp 1473-1474, para 24: “Although the definition of what may be work equipment is to be found in regulation 2, the ambit of the expression ‘work equipment’ in these Regulations is determined by regulation 4….This indicates…that the Regulations are concerned with what may loosely be described as the tools of the trade provided by an employer to an employee to enable the employee to carry out his work….The van might well be work equipment of a policeman driving it, but not of the police mechanic repairing it…” 19. I must respectfully differ. Regulation 2 defines work equipment. Regulation 4(1) tells you which work equipment the regulations apply to. The requirements imposed by the regulations do not apply to all work equipment but only in respect of work equipment “provided for use or used by any of his employees who is at work.” But that does not mean that “the ambit of the expression ‘work equipment’ in these Regulations is determined by regulation 4.” The effect of regulation 4 is that the regulations apply only to a subset of the category work equipment as defined in regulation 2. You first decide whether some apparatus is work equipment or not and then you decide whether the regulations apply in respect of it. 20. It follows that I cannot accept that something can be work equipment in relation to one person but not to another. If the dog van was “machinery, appliance [or] apparatus” (which I should have thought it was) under the 1992 definition and “for use at work” under the 1998 definition (which I also think it was), then in my opinion it was work equipment. 21. The Court of Appeal was greatly exercised by the possibility that if a car brought to a garage for repair was regarded as work equipment in relation to a mechanic employed by the garage, his employer would be strictly liable for defects in the car over which he could have no possible control. That would certainly be a strange result. But in my opinion the solution to the difficulty must be found in the provision which delimits the area of the employer’s responsibility (regulation 4(1) of the 1992 regulations and 3(2) of the 1998 regulations) rather than by giving an artificial and relativist meaning to the definition of work equipment. 22. If one were simply applying the equipment directive, the garage case posed by the Court of Appeal would cause no difficulty. Article 3.1 says that the general duty of the employer is to — “take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health. In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question.” 23. In the garage case, it seems to me that although the car brought in for repair may be work equipment, it has not been “made available to workers in the undertaking and/or establishment.” The notion of “selection” of the work equipment by the employer does not apply to equipment which his customers bring to be repaired. It is therefore outside the scope of the duty created by the directive. 24. But the directive does not say that work equipment must have been made available to the particular employee who has been injured. It speaks of the equipment being made available to “workers in the undertaking.” That, in my view, means all or any of the workers in the undertaking. When one is considering the persons to whom the equipment has been made available, the relevant unit is the undertaking and not the particular worker. So, for example, if an undertaking carrying on a delivery business provides vans for its employees, they will be work equipment made available to workers in the undertaking. If a van driver repairs a puncture and is injured by a defect in the wheel, he will have been using the work equipment. It cannot in my opinion make any difference if the repair is done by a different worker in the same undertaking - for example, a specialised mechanic like Mr Hammond. 25. I therefore think that in the Hammond case, the question which should have been asked was not whether the van was work equipment (it clearly was) but whether Mr Hammond was a worker in the undertaking to which it had been supplied. I should have thought he was - the policemen who drove the dog van and Mr Hammond were all employed (or deemed to be employed) by the Commissioner in a single undertaking, the Metropolitan Police. The fact that the van belonged to a separate legal entity, the Metropolitan Police Authority, does not seem to me to be relevant. On the other hand, if a van used by the Royal Mail is taken for repair to an independent garage, the garage mechanic is not a worker in the undertaking, to whose workers the van has been supplied. That undertaking is the Royal Mail and not the garage. 26. The equipment regulations should in my opinion be interpreted to accord with the principle stated in the directive. It should therefore have covered Mr Hammond repairing a defective police car but not a mechanic repairing a third party’s car which had not been provided as equipment to the undertaking for which he worked. There is in my opinion no difficulty about construing the regulations to include Mr Hammond. But, if they are read literally, there may be a difficulty about excluding the worker repairing a third party’s equipment. That is because, instead of using the term “made available to workers in the undertaking", the equipment regulations (3(2)) say “provided for use or used by an employee of his at work". Do the words “or used” create liability for injury caused by any actual use (including repair) of any work equipment, whether provided by the employer or not? This would go far beyond the requirements of the directive. I doubt whether they were intended to have such a wide meaning, especially in view of the imposition of liability by regulation 3(3)(b) on a person who is not the employer but has control of work equipment. That might, in an appropriate case, make the Royal Mail liable for injury caused to a garage employee by its defective vehicle. But it is hard to see why the garage owner should be liable as well. It may be that the words “or used” were inserted to cover a situation in which, with the employer’s consent, the employee uses some work equipment which one would ordinarily expect to have been provided by the employer: say, his own saw or screwdriver. This may be another case in which the draftsman thought he could clarify the meaning of a directive but would have done better to leave its language alone. But for reasons I shall explain, it is not necessary in this case to decide the precise limits of regulation 3(2). 27. In holding that the door closer was not work equipment, the Division followed the Hammond case. It led the judges to the conclusion that the door closer was not work equipment and for the reasons I have given, I think that was wrong. The door closer was apparatus for use at work. On the other hand, I have the same difficulty as the sheriff in treating it as having been provided for use by the pursuer’s employer KBR. It was provided by Talisman. It was however being used by the pursuer and whether this brings it within the scope of article 3(2) may depend upon whether the arrangements between KBR and Talisman were such that the platform could be regarded as the site of an undertaking by KBR as well as Talisman. 28. On the other hand, I think there can be no doubt that Talisman had control of the door closer as part of the platform. It is therefore responsible under regulation 3(3)(b) and it follows that it will be liable if the closer was not suitable for the purpose of being used or safely repaired. The respondent’s conceded that if Talisman were liable, both they and KBR should be held liable. It is for this reason that I do not think it is necessary to decide the precise basis upon which KBR might be liable. 29. I would therefore allow the appeal, recall the interlocutors of the Court of Session and the Sheriff and allow the parties a proof. LORD RODGER OF EARLSFERRY My Lords, 30. I had the advantage of reading the speech of my noble and learned friend, Lord Hoffmann, in draft. I agree that, for the reasons he gives, the appeal should be allowed. Because of the importance of the issues, I have thought it right to add some observations of my own. In doing so, I gratefully adopt the account of the facts and issues given by Lord Hoffmann. 31. Article 118a (now article 137(1)(a) and 2(b)) of the EEC Treaty provided for the Council of Ministers to adopt minimum standard directives with the aim of harmonising conditions in the working environment, as regards the health and safety of workers. Acting under that article, in November 1989 the Council adopted Directive 89/655/EEC concerning the minimum safety and health requirements for the use of work equipment by workers at work. Consonantly with its treaty base, the Directive confined its attention to the health and safety of “workers". 32. So far as Great Britain is concerned, the necessary steps to bring the law into conformity with the Directive were originally taken in The Provision and Use of Work Equipment Regulations 1992 (SI 1992/2932). Those regulations were superseded by The Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (“the 1998 Regulations”), which made certain drafting changes and also included provisions required by Directive 95/63/EC. The 1998 Regulations are the provisions in play in this appeal. Both sets of regulations were made under section 15 of the Health and Safety at Work etc Act 1974 (“the 1974 Act”), rather than - expressly, at least - under section 2(2)(a) of the European Communities Act 1972. Section 15 contains a wide power to make regulations for the health and safety of people at work and for the protection of other people against risks attributable to equipment being used for the purposes of the undertaking. See sections 1, 15 and 53(1) of the 1974 Act. The Secretary of State was therefore able to give full effect to the proposals of the Health and Safety Commission by making regulations which went further than the minimum requirements of the Directive: for instance, the 1998 Regulations impose requirements on persons other than employers. 33. The 1998 Regulations deal with health and safety requirements relating to work equipment. But those requirements are not to be seen in isolation. In particular, under Regulation 3(1) of The Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), the employer must assess the risks to the health and safety not only of his employees while they are at work but also of persons not in his employment arising out of, or in connexion with, the conduct by him of his undertaking. This obligation reinforces the general duties on employers under section 2 and section 3(1) and (3) of the 1974 Act. The aim is to identify the measures which the employer needs to take in order to comply with the requirements and prohibitions imposed under statutory provisions such as the 1998 Regulations. Corresponding duties are imposed on self-employed persons (Regulation 3(2)) - again, reinforcing the duty under section 3(2) and (3) of the 1974 Act. Various obligations of co-operation and co-ordination are imposed on two or more employers who share a workplace (Regulation 11) and on an employer who hosts employees from an outside undertaking (Regulation 12). For instance, the host employer must provide the employees’ employer with information on the risks to their health and safety and on the measures taken to comply with the relevant statutory requirements relating to the employees (Regulation 12(1)). 34. Civil courts tend to come across health and safety regulations when someone has been injured and is suing by virtue of section 47 of the 1974 Act. Given the strict liability imposed by the 1998 Regulations, it makes good sense for those who have been injured to bring proceedings, wherever possible, for breach of the relevant regulation, rather than to rely on the common law of delict or tort or on the appropriate Occupiers’ Liability Act. Nevertheless, when interpreting the 1998 Regulations, it is important to remember that civil liability for injuries is essentially a secondary feature. Their main purpose is not to give those who have been injured a straightforward route to damages, but to prevent them being injured in the first place. If this results in a broad swathe of strict liability in damages, that is simply one consequence of the correspondingly broad scope of the measures adopted to achieve that purpose. |
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