Judgments - Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland)

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35.  The 1998 Regulations replaced a multitude of separate sets of Regulations which used to govern particular pieces of equipment, such as abrasive wheels, or particular industries, such as shipbuilding, and which were familiar to generations of personal injury lawyers. The 1998 Regulations are framed much more generally and work by requiring employers and others to apply their minds to the health and safety risks relating to work equipment. So, in order to think constructively about what goes on, or will go on, in their undertaking and to assess the risks, those who are potentially subject to the requirements must be able to determine what items constitute work equipment and what Regulation 4, for instance, requires them to do. It would be difficult to carry out that kind of exercise if items could slip in and out of being work equipment, depending on what was being done with them at any given moment.

36.  At the hearing of the appeal counsel concentrated on two issues. First, was the door closer “work equipment” in terms of the 1998 Regulations? Secondly, if so, was the pursuer “using” it when he was injured? Clearly, unless the door closer was work equipment, the pursuer’s action based on the 1998 Regulations is irrelevant and must be dismissed - as the Second Division held. The question whether the pursuer was “using” the equipment arises because, under Regulation 4(1), for instance, work equipment must be suitable for the purpose for which it is “used". A majority of the Second Division would have held that, since the kind of repair which the pursuer was carrying out did not fall within the definition of “use” in Regulation 2(1), there was no breach of Regulation 4(1) when the pursuer was injured.

37.  But use is relevant in another way. As I have mentioned already, the 1998 Regulations go further than the Directive and impose requirements not only on employers but on certain other people as well.

38.  So far as employers are concerned, the relevant regulation is 3(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.”

The requirements which are imposed on an employer are to be found in Parts II to IV of the Regulations, the provisions in which all make reference to “every employer". But, an employer, simply qua employer, does not necessarily have any relationship with work equipment. The purpose of Regulation 3(2) is therefore to identify the work equipment to which those requirements apply: they apply to work equipment which is provided for use or is used by an employee of the employer at his work. Therefore, in order to discover whether the requirements in Parts II to IV apply, you must see whether the equipment has been provided for use, or has been used, by an employee of the employer at his work.

39.  So far as people other than employers are concerned, the relevant regulation is 3(3) and (4):

“(3) The requirements imposed by these Regulations on an employer 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.

(4) Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).”

40.  By contrast with Regulation 3(2), Regulation 3(3) has to perform two functions: it must identify the persons, other than employers, on whom the requirements in Parts II to IV are to be imposed, and it must identify the work equipment in respect of which those requirements are to apply. Regulation 3(3)(a) identifies “a self-employed person” as a person to whom the requirements are to “apply” and provides that they are to “apply” to him in respect of work equipment he uses at work. Regulation 3(3)(b), on the other hand, simply identifies people to whom the requirements are to “apply” by reference to the control which they have in relation to work equipment. That control must be in connexion with a trade, etc (Regulation 3(4)).

41.  The language of Regulation 3(3) is a little compressed. Although the draftsman refers to the persons, apart from employers, to whom the requirements in Parts II to IV “are to apply", that aspect of Regulation 3(3) really deals with the persons, apart from employers, on whom the requirements in Parts II to IV are imposed - to use the language in Regulation 3(2). For present purposes, it is relevant to notice that the requirements are imposed on, inter alios, a person who has control, to any extent, of work equipment, or of the way in which work equipment is used at work, but only “to the extent of his control.”

42.  The first defenders were the pursuer’s employers at the time of the accident. So, under Regulation 3(2), the requirements in Parts II to IV were imposed on them if the door closer was work equipment and was provided for use, or was used, by an employee of theirs at work. The draftsman of the regulation uses the past participle passive, “provided for use": the regulation does not mention who provided the equipment for use. In particular, it does not say that the equipment was provided by the employer. The form of words is plainly designed to allow for the common situation in this country where contractors supply the workforce, or some part of the workforce, to work with equipment provided by the owner of the workplace. Indeed, most of the workforce on North Sea oil platforms is supplied in that way. Alternatively, some work equipment may be provided by a third party, such as a plant hire company. It matters not: the requirements in Parts II to IV are still imposed on the employer of the employees who use the equipment. In such cases, Regulation 12 of the Management of Health and Safety at Work Regulations 1999, to which I referred in para 33, assists that employer to fulfil those requirements.

43.  It is perhaps worth emphasising that the requirements are imposed on an employer if the work equipment is used by “an", ie any, employee of his. So, for instance, in the present case, if the control room door is work equipment, then the relevant requirements of Part II were imposed on the first defenders if any of their employees used the door to go in and out of the control room.

44.  Moreover, although the trigger for the requirements being imposed on an employer is the use of the work equipment in question by any of his employees, most of the requirements themselves are not concerned solely with the health and safety of his employees. For instance, under Regulation 4(4) work equipment must be suitable in any respect which it is reasonably foreseeable will affect the health or safety “of any person". A requirement of that width is plainly necessary when work equipment will often be used in situations where not only visitors but employees of a number of other contractors are likely to be present and so to be within range of potential danger.

45.  The second defenders are the platform operators. If they had employees on the platform, then, by virtue of Regulation 3(2), the relevant requirements of Parts II to IV would apply to the work equipment which their employees used. But, in addition, by virtue of Regulation 3(3), the relevant requirements would be imposed on the second defenders in respect of any work equipment of which they had control, to any extent - but only to the extent of their control. So, if they were in control of the control room door, then, by virtue of Regulation 3(3)(b), the relevant requirements of Part II would be imposed on them in respect of the door and its closer - irrespective of whether any employee of theirs ever used it. Therefore, in terms of Regulation 4, work equipment which the second defenders controlled would have to be suitable in any respect which it was reasonably foreseeable would affect the health of “any person", including the pursuer, even though he was employed by someone else.

46.  No party makes any averments about the control of the control room door and the House heard no submissions on the point. Nevertheless, it is easy to see that, in an appropriate case, issues could arise as to who was in control of the equipment in a particular area of the platform - for example, if, from day to day, all the work equipment in the kitchen was in the hands of the catering contractor and its staff. In that situation, the relevant requirements in Part II of the Regulations in respect of the work equipment would be imposed on the contractor, not only as the employer of employees using the equipment, under Regulation 3(2), but also as a person in control of the work equipment, under Regulation 3(3)(b). Of course, equipment may be in the control of more than one person and issues about the extent of the control exercised by each of them could arise.

47.  As Lord Hoffmann has explained, Sheriff Tierney sustained the first defenders’ plea to the relevancy and dismissed the action so far as directed against the first defenders. In his written case, the pursuer submitted that the sheriff had erred and that the House should allow a proof against both defenders. But, in the event, the House heard no detailed submissions on how Regulation 3(2) and (3) worked in this case. As the sheriff explained in his note, the contract between the defenders contains an indemnity clause in favour of the second defenders. For that reason, the two defenders have not been separately represented in the litigation. In these circumstances Mr MacAulay QC, who appeared for both defenders, was content to proceed on the basis that, if the pursuer’s appeal succeeded, the House should allow a proof against both defenders.

48.  I turn now to consider whether the control room door closer was “work equipment” in terms of the 1998 Regulations.

49.  Precisely because, subject to certain specified exceptions, the 1998 Regulations are intended to cover all kinds of undertakings, Regulation 2(1) defines “work equipment” very broadly as “any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)". So any machinery, appliance etc for use at work counts as “work equipment". A complication arises, however, because, in the same subsection, “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.” This has prompted the idea - or fear - that something, which would not otherwise be regarded as work equipment, falls to be so regarded merely because it is, say, being repaired or serviced or cleaned, and so is being “used” at work in terms of the definition of work equipment.

50.  As is often the case, the definitions in Regulation 2(1) could perhaps have been drafted more clearly. But in my view they create no real difficulty in the circumstances of this case. The definition of “use” in relation to work equipment in Regulation 2(1) applies “unless the context otherwise requires.” In the definition of “work equipment” itself, the context does indeed require otherwise.

51.  The machinery and apparatus etc of an undertaking are there to perform a useful, practical function in relation to the purposes of that undertaking. Depending on the nature of its business, the undertaking may, for instance, have lathes for cutting metal, axes for chopping wood, a furnace for refining ore, chalk for writing on blackboards, needles for sewing model dresses, hoists for raising loads, fork-lift trucks for carrying the loads from place to place, and, in the case of a courier business, bicycles, vans or aircraft for carrying letters and parcels. All these pieces of equipment would serve a useful function in the employer’s business. So they are “for use at work” and fall within the definition of “work equipment". Indeed, many other things may be “for use at work” - for example, clocks to let the employees know the time, radios for them to listen to music while they work, kettles for them to make tea or coffee and water-coolers at which they can drink and gossip. All these will constitute work equipment - as indeed will, say, screwdrivers or radios of their own which employees are allowed to bring in and use at work.

52.  By contrast, a business would not have machinery etc simply so that it could be programmed, transported, repaired or cleaned: if that were all that it was there for, the machinery would serve no useful, practical purpose in the undertaking. Rather, programming, transporting, repairing and cleaning are all operations which may have to be carried out on something that is “work equipment” because it serves some practical purpose, is “for use at work". These operations are included within the definition of “use” in relation to work equipment in order to ensure that the equipment poses no threat to health and safety when any of them is being carried out. In other words, as the very form of the term to be defined (“'use’ in relation to work equipment”) suggests, you must first determine whether the item in question falls within the scope of the definition of “work equipment” in Regulation 2(1). If it does, the definition of “use” then lists some of the activities which count as “use” in relation to that item for the purposes of the 1998 Regulations.

53.  In short, if the walls or floor of a factory, for example, are not to be regarded as “work equipment", they do not become “work equipment” simply because they fall into disrepair and an employee has to repair them; equally, if a drill is an item of “work equipment", it does not cease to be so merely because it breaks down and someone is repairing it. It follows that, where an employee is, say, transporting a drill, which any employee uses at work, from one part of a factory to another on his employer’s fork-lift truck, both the drill and the fork-lift truck are “work equipment” in terms of Regulation 2(1). Similarly, if an employee uses a screwdriver to open the casing of a drill which he is in the habit of using, both the screwdriver and the drill are “work equipment".

54.  For these reasons, I would reject May LJ’s view that the 1998 Regulations “do not extend to that which the employee is working on as distinct from the equipment which he is using to undertake his work": Hammond v Commissioner of Police of the Metropolis [2004] ICR 1467, 1474C-D, para 25. He states the position too generally: in each of the examples which I have just given, the drill is “work equipment” which is used by an employee at work. Therefore, the relevant requirements imposed on an employer by Part II of the 1998 Regulations apply to the drill. Regulation 3(2) plays no part in the definition of “work equipment": it simply identifies one situation where the requirements in Parts II to IV apply to something that is “work equipment". Regulation 3(3) gives other such situations. I would accordingly reject the reasoning of the Second Division on this point: their Lordships were, understandably, following the approach of the Court of Appeal to the interpretation of Regulations applying to Great Britain.

55.  The broadly formulated terms of Regulation 3(2) work satisfactorily in a case like the present. But it is at least possible that, in very different circumstances, they are capable of producing results which might be regarded as more questionable. In Hammond v Commissioner of Police of the Metropolis [2004] ICR 1467, 1474A-B, para 24, May LJ envisaged a garage owner whose employee repairs a van which is an item of work equipment in a customer’s business. Would the requirements imposed on an employer by Part II apply because, in terms of Regulation 3(2), the customer’s work equipment was “used” by the garage owner’s employee? Lord Hoffmann has highlighted many of the relevant issues, but the point is not for decision in this case and I express no view on it. It is enough to say that, whatever the answer may be, the garage hypothetical does not persuade me that, in the present case, the door closer is not to be regarded as “work equipment” simply because it was being worked upon by the pursuer.

56.  I would therefore hold that, if the door closer in the present case was not work equipment when it was operating to close the control room door, it did not suddenly transform itself into work equipment when it stopped working properly and the pursuer was engaged in trying to repair it. Conversely, if the door closer was work equipment when operating to close the door, it did not cease to be work equipment when it broke down and the pursuer was trying to repair it. So the House must decide whether, when performing its normal function, the door closer is to be regarded as “work equipment” in terms of Regulation 2(1). I have put the issue in terms of the door closer, since that was how it was presented by counsel. But, as Mr MacAulay acknowledged, it may be better not to consider the closer in isolation. An employee who repairs a faulty switch or plug on a drill is not simply repairing the switch or plug: he is repairing the drill which is not working properly. Similarly, the pursuer was not simply repairing the closer: he was repairing the control room door which was not closing properly. So the issue to be determined is whether, when in operation, the control room door is “work equipment” for purposes of the 1998 Regulations.

57.  To some extent, this is a matter of impression. Like Lord Hoffmann, however, I have come to the view that, on the pursuer’s averments, the door, including the door closer, is to be regarded as “work equipment” in terms of the definition in Regulation 2(1). According to the pursuer, the door is used all the time by employees going in and out of the control room. Since a closer is fitted, it must be thought that the door should be kept closed when not in use - whether to prevent noise from disturbing those working in the control room or for some other purpose relating to what they do there. There is, therefore, nothing artificial in describing the door, including the closer, as an apparatus for use by employees at work. I find support for that conclusion in Beck v United Closures & Plastics PLC 2002 SLT 1299 where Lord McEwan held that two heavy doors, which employees had to use many times a day to enter a room to gain access to machinery, constituted work equipment in terms of the 1998 Regulations.

58.  The rival view might be that the door to the control room was not work equipment because it formed part of the fabric of the structure. But I doubt whether it would be wise to draw too sharp a division between work equipment and fabric. If an employer provides a clock for the use of his employees, it surely qualifies as “work equipment", whether it is free-standing or built into the walls. Moreover, for the reasons given by Lord Hoffmann, I find nothing in the other regulations to which the House was referred which would displace the conclusion that the door to the control room, including the closer, was “work equipment” in terms of the 1998 Regulations.

59.  If, then, the door, including the closer, was “work equipment", was the pursuer “using” it when he was injured while easing a screw, in order to detach the closer and take it to the workshop to try to repair it? The Lord Justice Clerk (Gill) thought not - since the pursuer was “using” the equipment with which he was effecting the repair, but not the equipment that he was repairing: 2007 SC 469, 471, para 8. That conclusion is based on May LJ’s reasoning in Hammond v Commissioner of Police of the Metropolis [2004] ICR 1467, which I have already rejected. Lord Johnston and Lord Marnoch went further, however. They held that, even if - contrary to their view - the door closer was work equipment, the pursuer had not been “repairing” it, in terms of the definition of “use” in Regulation 2(1) of the 1998 Regulations.

60.  While recognising that “use” in Regulation 2(1) includes “repairing", Lord Johnston said this, 2007 SC 469, 479-480, para 46:

“However in this context it is again important to place the context of reg 4 against the definitions in reg 2, since at all times the purpose I consider of the application of the phrase ‘work equipment’ is to protect the workman using such equipment. This might embrace routine maintenance or cleaning or even minor repairing while the machine is operating (cf English v North Lanarkshire Council 1999 SCLR 310). What in my opinion it could never embrace is a situation where work is being carried out of a major repair nature designed to return the equipment to a workable and safe state. This is what I consider the word ‘suitable’ must be construed to mean in reg 4, otherwise a circular situation is reached whereby the breakdown of machinery which requires to be repaired still renders the employer exposed to the terms of the relevant safety regulations as regards equipment being repaired. It is plain that reg 5 is designed to embrace an obligation to maintain and repair at a time when the machine in question is not otherwise in use. By definition in seeking to remove the door closer mechanism, which is what the pursuer was doing at the time of the accident, he cannot be said to be using it for a purpose connected with work as understood by the definition of ‘use'. He is effecting an action of repair which is entirely removed from the normal working of the machine.”

Lord Marnoch explained his view in this way, 2007 SC 469, 481, para 55:

“In my opinion, however, when the Regulations are looked at in their entirety and reg 2 is read in its overall context, it becomes clear that, while reg 4 can certainly encompass ‘use’ by ‘repairing, modifying, maintaining, servicing and cleaning', the intention is that this is only where such use can be seen as routine, such as where the ordinary employee is expected to do these things as ancillary or incidental to the main day-to-day use of the ‘work equipment'. That, it seems to me, is quite distinct from the specialised repair (involving dismantling) in the present case which, on his own averments, the appellant was carrying out in his capacity as a ‘mechanical technician'. In that situation, and on the present hypothesis, I am of opinion that the first defenders, as the appellant’s employers, were doing no more and no less than attempting to comply with reg 5(1), namely to ‘ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair'. In so far as the appellant’s pleadings rely on reg 4 and reg 5(1) they are accordingly, in my opinion, on any view irrelevant.”

61.  I would respectfully reject the idea that the term “repairing” in the definition of “use” in Regulation 2(1) should be construed narrowly in this way. So far as the language and structure of the definition are concerned, there is absolutely nothing to indicate that “repairing” should be given anything other than its “ordinary” meaning. More importantly, the kind of distinction favoured by Lord Johnston and Lord Marnoch - between routine, minor repairs and more serious repairs - makes no sense from the standpoint of ensuring health and safety. For instance, when selecting work equipment, a person who is subject to the requirement in Regulation 4(2) must have regard to the working conditions and to the risks to the health and safety of persons in the premises or undertaking in which it is to be used, and to any additional risk posed by the use of that work equipment. Their Lordships apparently accepted that, when selecting work equipment, an oil platform operator, for example, would need to have regard to any risks there might be to people on the platform when minor, routine repairs to the work equipment were being carried out. But, on their approach, the platform operator would not require to have regard to the (perhaps, far greater) risks to people on the platform when a piece of work equipment had to be taken out of service in order to undergo a major repair. So, in selecting, say, a gas compressor for use on the platform, the platform operator would have to consider the risks involved in the straightforward procedure of replacing a faulty external switch, but not the risks involved in shutting the compressor down and opening it up to replace some faulty internal component - with the possibility of volatile gas escaping into the atmosphere and causing an explosion if the equipment were not constructed so that the gas could be vented safely for the purposes of repairing the equipment. Such an interpretation would blow a hole in the protection afforded by the legislation. It simply cannot be right.

62.  On the contrary, when selecting any item of work equipment, under Regulation 4(2) the platform operator would indeed have to consider whether a major repair could be carried out without imperilling the safety of the platform and everyone on it. Indeed, that is just common sense - not only for oil platforms but for any factory or workplace where major repairs to equipment may have to be carried out. In my view, the word “repairing” in Regulation 2(1) should therefore be given its “ordinary” meaning. In terms of that ordinary meaning, on his averments, the pursuer was engaged in “repairing", and so “using", the door, or door closer, when the arm of the closer sprang out and injured him.

 
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