|Judgments - Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland)
63. For these reasons, I would allow the appeal and make the order proposed by Lord Hoffmann.
64. The appellant Peter Spencer-Franks, the pursuer in the action, sustained an injury to his mouth on 12 October 2003 when working in the course of his employment as a mechanical technician. He was employed by the first respondent Kellogg Brown & Root Ltd to carry out work on the Tartan Alpha oil rig in the Scottish sector of the North Sea, of which the second respondent Talisman Energy (UK) Ltd was the owner and operator. Whether he is entitled to recover on the averments made by him on the pleadings depends on the construction to be placed on the Provision and Use of Work Equipment Regulations 1998.
65. The appeal before the House is brought against an interlocutor of the Second Division of the Inner House of the Court of Session, whereby the appellants appeal was refused and the second respondents cross appeal was allowed, with the result that the appellants action for reparation which he had brought in Aberdeen Sheriff Court was dismissed.
66. The matter was decided in the Sheriff Court as a preliminary issue upon assumed facts, which are to be taken pro veritate for the purposes of this appeal. The narrative is set out in paragraph 5 of the Statement of Facts and Issues as follows:
[H]e was to inspect and repair the door closer on the central control room door on said installation. The closer was not closing the door properly. He stood on a portable stool to reach the door closer. He tried to prise off the linkage arm with a screwdriver but there was either an above normal amount of tension on the arm or it was seized in position. In order to assess what type of tool he required to remove the linkage arm he had to assess the tension on the linkage arm of the door closer. He applied pressure to the arm with his left hand whilst backing off a screw half a turn with his right hand so that he could assess the tension. The screw became completely disengaged and the linkage arm struck him on the face and he was injured. There were four or five washers under the screw.
Further averments are set out in paragraph 6:
6. The pursuer avers that the door was a busy door with people going in and out of the door all the time. He avers that when screwed fully home the screw should require three to four complete turns to disengage it. He avers that the screw had not been put in properly.
67. The outcome of this appeal turns on the construction to be placed on the 1998 Regulations and in particular the meaning of the phrase work equipment and whether the door closer constituted work equipment within the meaning of the regulations. As a matter of first impression I thought that there was much to be said for the view that the Directive and Regulations were intended to extend only to tools and machinery with which work is actively carried out, as distinct from more static items such as the door in question, but after careful consideration of the applicable provisions and their objective and of the arguments presented orally and in writing to the House, I have come to the conclusion that the appeal should be allowed, for the reasons I shall give.
68. The Provision and Use of Work Equipment Regulations 1998 (known generally for convenience as PUWER 1998) were made under the powers conferred by the Health and Safety at Work etc Act 1974 and are the successors to the 1992 regulations, from which they vary slightly. They were made in compliance with the Council Directive 89/655/EEC (the Work Equipment Directive) and the objective of incorporating the requirements of the Directive has to be borne in mind in interpreting the regulations. As my noble and learned friend Lord Rodger of Earlsferry has pointed out in para 6 of his opinion, these sets of regulations replaced and amended a multitude of specific statutory provisions and regulations relating to particular trades and activities, including the sections of the Factories Act 1961 relating to machinery and such long familiar regulations as those governing woodworking, shipbuilding, power presses and abrasive wheels. They are accordingly generalised obligations governing a wide variety of activities and trades and require a construction which bears in mind the need to protect workers in such a wide range.
69. The definition of work equipment in Regulation 2(1) of PUWER 1998 is simple and broadly expressed:
'Work equipment means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)".
It may be noted that this definition varied from that contained in the 1992 regulations, the most significant extra word being installation". Use in relation to work equipment is defined as
any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning.
These definitions reflect those contained in the Directive, which by article 2 are to have the following meanings:
(a) work equipment': any machine, apparatus, tool or installation used at work.
(b) use of work equipment': any activity involving work equipment such as starting or stopping the equipment, its use, transport, repair, modification, maintenance and servicing, including, in particular, cleaning.
70. The Annex to the Directive contains a series of provisions specifying requirements with which work equipment provided to workers after 31 December 1992 must comply. Most of these relate by their nature to machinery or power tools and might form the foundation for the suggestion that the definition of work equipment in the Directive was intended to cover only such items and not to extend more widely.
71. That is not, however, the way in which the courts have interpreted the regulations. Motor vehicles and their components and bicycles have been held to fall within the definition of work equipment. In Mackie v Dundee City Council  Rep LR 62 a dining hall table being moved by a caretaker was held to be work equipment, as was a steel storage cabinet in Duncanson v South Ayrshire Council 1999 SLT 519. In Beck v United Closures and Plastics plc 2002 SLT 1299 heavy doors which had to be closed to enable machinery to be started up were held to be work equipment. In Robb v Salamis (M & I) Ltd,  UKHL 56, 2007 SC (HL) 71 it was conceded, and so did not form the subject of argument before the House of Lords, that a step ladder used by an employee on an oil rig to reach his bunk was work equipment, and in PRP Architects v Reid  EWCA Civ 1119,  ICR 78 a lift used by an employee in the common part of a building when leaving work was so classified: see generally the list of examples in Munkman on Employers Liability, 14th ed (2006), paras 20.09 to 20.11 and Charlesworth & Percy on Negligence, 11th ed (2006), para 11-170.
72. The pattern of case-law was consistent until the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis  EWCA Civ 830,  ICR 1467. The claimant in that case was a police mechanic, who was repairing a police car when the wheel bolt which he was undoing sheared, causing him to sustain injury. The police car was owned by the second defendant the Metropolitan Police Authority, which was found not to be liable under the provisions then applying under PUWER 1992. The Court of Appeal allowed an appeal from the decision of the lower court in which the judge had held both defendants liable for breach of statutory duty. The courts basic reason stemmed from concern that such a decision would impose liability for an injury sustained by a mechanic working on a customers car over whose defective condition his employer could have no control. In giving the leading judgment May LJ expressed the further opinion, which influenced the findings of the Court of Session in the present case, that the phrase work equipment does not cover a workpiece, an object provided by others on which the employee is working in the course of his employment. He stated his view in para 24 of his judgment 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.
He qualified this remark by saying that his use of the expression tools of the trade was intended to be illustrative and not definitive, but the remark was picked up by Lord Johnston in para 43 of his judgment and formed the basis of his conclusion.
73. I do not think that that conclusion can be supported, attractive as the arguments in its favour may be. It seems to me inescapable that the Directive and regulations were intended to cover a wide range of objects used in the course of work and that once it is established that such an object is work equipment liability will attach if is defective in one of the respects specified in the regulations, although the claimant may have been in the course of repairing it when injured.
74. The definition of work equipment in Regulation 2(1) is very broad indeed, and one should not restrict that breadth unnecessarily if the intention of the regulations and Directive to provide comprehensive protection to workers is to be fulfilled. Everything which comes within the description of machinery, appliance, apparatus, tool or installation is within the definition of the phrase work equipment if it is for use at work. The word use is in turn defined broadly and includes repair. Then under Regulation 3(2) the employer is liable if the equipment is provided for use or used by an employee of his at work", when there is a breach of the requirements. One therefore has to ask first if the item in question is work equipment, then if it is provided for use or used by the claimant at his work. There may be difficulties in particular cases, as Lord Rodger has noted, in distinguishing work equipment from things which constitute part of the workplace, but I agree with him that 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.
75. Application of the tests contained in these provisions gives a different answer from that reached by the Court of Session in the present case. In my opinion the door to the control room can properly be regarded, on the assumed facts, as work equipment. The door closer forms part of the door and I think that the door, which is a heavy door giving access to the control room, comes within the definition. It can be brought within it as being an installation, or possibly apparatus, for use at work.
76. The work equipment was used at his work by the pursuer, who was occupied in repairing it, and that engages the employers liability under Regulation 3(2). I am unable to agree with the view expressed by Lord Johnston and Lord Marnoch in the Court of Session that repairing extends only to routine repairs and does not cover major repairs designed to return the equipment to a safe and workable state. In my opinion repairing means what it says, carrying out repairs to the equipment, and I can see no sufficient ground for a distinction between major and minor repairs. The respondents were jointly represented, because of the existence of an indemnity clause, but it seems to me that the second respondent operator of the oil rig would be jointly liable under Regulation 3(3)(b) as a person who has control to some extent of work equipment. If liability had to be decided in the absence of an indemnity agreement, the employer and the occupier would be jointly liable to the pursuer and the court could apportion liability between them as it saw fit, taking account of their respective degrees of fault.
77. I accordingly would hold, in agreement with your Lordships, that on the assumed facts the door closer is capable of constituting work equipment being used by the appellant at the time of his injury and the action should not be dismissed. I would therefore allow the appeal and make the order proposed by my noble and learned friend Lord Hoffmann.
78. I have had the benefit of reading in draft the speeches of my noble and learned friends, Lord Hoffmann, Lord Rodger of Earlsferry and Lord Carswell. The known facts are sparse. The appellants request to the House is, indeed, for no more than for a proof before answer reserving the question of the applicability of the Provision and Use of Work Equipment Regulations 1998 SI 1998/2306 (the 1998 Regulations) against both respondents for answer once the facts have been determined. But it is known that the pursuer was working on the Tartan Alpha platform operated by the second respondent, Talisman Energy (UK) Ltd. (Talisman), and that he was doing this as an employee of the first respondent, Kellogg Brown and Root Ltd. (KBR) who were contracted, quite probably by Talisman, to provide maintenance services there. Whatever arrangements there were between the respondents seem to have included an indemnity clause in favour of KBR, and the two are represented by common counsel, who has indicated that, if the appeal succeeds against either, there is no objection to it succeeding against both.
79. The appellants pleaded case relies exclusively on the 1998 Regulations. The recital to these Regulations records that they were made by the Secretary of State under inter alia s.15(1) of 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 ["HSC"] under section 11(2)(d) of the 1974 Act".
80. S.15(1) of the 1974 Act gives power to make regulations for any of the general purposes of that Act. S.1 of that Act provides that Part 1 of the Act (which includes s.15) shall have effect with a view to (a) securing the health, safety and welfare of persons at work; (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 ". S.52(1) provides that (a) work for the purposes of Part 1 means work as an employee or as a self-employed person, and (b) an employee is at work throughout the time when he is in the course of his employment, but not otherwise".
81. The HSC proposals state (paragraph 25) that
In putting forward these proposals the HSC has been guided by the need to implement the European Directive [viz. the Use of Work Equipment Directive 89/655/EEC, itself made pursuant to Framework Directive 89/391/EEC] in full and on time, while ensuring the levels of safety are maintained and that we do not go beyond the Directive unless there are good grounds for doing so".
One area in which the Regulations go further than the Directive is reflected in the Explanatory Note to the 1998 Regulations, which records that the 1998 Regulations also place .. duties (not required by the Directive) on others, who now include (regulation 3(3) to (5)) certain persons having control of work equipment, of persons at work who use or supervise or manage its use or of the way it is used, to the extent of their control". Paragraph 44 of the HSC proposals explains this more fully:
The requirements on dutyholders in PUWER [The Provision and Use of Work Equipment Regulations] 1992 currently apply to employers, the self-employed and persons with control of non-domestic premises made available to persons as a place of work . However, regulation 3(3)(b) has been drafted to reflect the way that work equipment is now used in industry where there may not necessarily be a direct employment relationship between the user and:
(a) the persons who control the use of work equipment e.g. where a sub-contractor could carry out work on another persons premises with work equipment provided by that person or a third party; or
(b) persons who control the equipment but not its use e.g. a plant hire company.
82. In Council Directive 89/655/EEC, work equipment is defined as any machine, apparatus, tool or installation used at work". The Directive is focused on work equipment selected by an employer and made available to workers in the undertaking and/or establishment and on its suitability for such use by workers without impairment to their safety or health (article 3(1)). The 1998 Regulations define work equipment in regulation 2(1) as meaning any machinery, appliance, apparatus, took or installation for use at work (whether exclusively or not)". The word installation was introduced in the 1998 Regulations, in order to reflect the language of the Directive: see paragraph 43 of the HSC proposals, which goes on to say:
. installation covers e.g. a series of machines connected together, such as a paper-making line or an enclosure for providing sound insulation. Installation would not include an offshore installation but would include any equipment attached or connected to it.
This intention (which seems to me accurately to reflect that of the Directive) was duly repeated in the HSC Approved Code of Practice and Guidance issued under s.16(1) of the Health and Safety at Work etc Act 1974.
83. The definition of work equipment in regulation 2(1) is therefore to be understood as referring to equipment for use at work by an employee or by a self-employed person. This fits with regulation 3(2) and 3(3)(a), as well as with regulation 3(3)(b) which is on this basis directed to persons having a degree of control over such work equipment, or over persons using, supervising or managing the use of such work equipment, or over the way in which such work equipment is used.
84. The definition of work equipment embraces items for use at work whether exclusively or not", and so recognises that it is possible, and in some contexts common, for an item to be for use at work at one time, but not at another. Take the company car used for an entirely private journey, quite possibly not even by the employee. Or take the tools of an employed or self-employed builders trade, which he uses at home to repair his own sink. On the other hand, an item does not cease to be for use at work merely because it is not actually being used at a particular moment in time, though standing by in a work context with a view to such use: see Given v. James Watt College  CSOH 189; 2007 SLT 39.
85. The concept of use is defined in regulation 2(1) in very broad terms, as meaning any activity involving work equipment and include[ing] starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning". If read literally in conjunction with the definition of work equipment", this could lead to a conclusion that a private customers personal item (not work equipment in his or her hands), entrusted to an undertaking for repair, became work equipment in the hands of an employee of that undertaking. No-one suggests that that would be a correct understanding of the 1998 Regulations. The appellant seeks to avoid it by reference to a distinction between items worked on and items with which work is done, and cited in his written case (para. 36) Hammond v. Commissioner of Police of the Metropolis  EWCA Civ 830;  ICR 1467 and Haigh v. Charles W Ireland Ltd 1974 SC (HL) 1, 37-38 per Lord Diplock. This is however a difficult distinction to draw in this connection in the light of, inter alia, the decision and reasoning of the House in Knowles v. Liverpool City Council  ICR 243, where a flagstone being laid by a council employee was held to be equipment provided by his employer for the purposes of the employers business under the Employers Liability (Defective Equipment) Act 1969 in the context of which Lord Diplocks dictum under the Factories Act 1961in Haigh was found unhelpful by the House (see per Lord Jauncey of Tullichettle at p. 249B-F). The 1969 Act is still in force, though the protection which it affords overlaps to some extent with that provided by the 1998 Regulations.
86. A more persuasive reason why a private customers private item, submitted for repair, could not be work equipment is advanced by my noble and learned friend Lord Rodger in his paragraphs 50 to 53. He suggests that, for the purposes of identifying something as work equipment, one should consider whether it is for use, in the sense that it performs a useful, practical function within and in relation to the purposes of the business. A lathe used in a repair workshop does this. But a customers item being repaired there is the merely passive object of the purposes of the repair workshop. The flagstone being laid in Knowles v. Liverpool City Council could be regarded as fulfilling a positive function in the Councils business, since it was being laid to improve the Councils public facilities.
87. What then is the position where an item which constitutes work equipment when being used for the purposes of business A is sent to business B for repair? My noble and learned friend Lord Hoffmann considers that the operator of business B would not be strictly liable under the Directive, because he would not have selected or made available the item for use in his business (para. 23), and doubts whether the Regulations would have any contrary effect (para. 26). My noble and learned friend Lord Rodger leaves the point entirely open (para.55). If one applies Lord Rodgers test which I have identified in the previous paragraph of this speech, there is a case for saying that the items never had any useful, practical function within and in relation to the purposes of business B, that it was never more than the merely passive object of the purposes of business Bs repair workshop, and that the Directive and Regulations were not intended to impose strict liability in such a case.
88. In the present case, the door closer had not been sent anywhere. It was under examination in situ with a view to repair. Even so, if one applies Lord Rodgers test, I doubt whether it can be regarded as work equipment in the context of the relationship between the appellant and KBR as his employers. The door closer was not fulfilling any useful, practical function within and in relation to the purposes of KBRs business, other than as the object of repair. The appellant argues that the United Kingdom cannot by transposition into domestic law of the Directive have intended to diminish the protection previously available to workers under the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 SI No. 1019 (which were replaced in two stages by the Provision and Use of Work Equipment Regulations 1992 SI no. 2932 and the Offshore Installations and Wells (Design and Construction, etc.) Regulations 1996 SI No. 913). But the 1976 Regulations were concerned not with employer-employee relations, but with the imposition of maintenance and other safety duties on the operators of offshore installations. Thus in Breslin v. Britoil plc 1992 SLT 414, cited by the appellant, it was only the platform operators who were held liable under the 1976 Regulations, while the employers were held liable at common law only.
89. However, there is a strong case for regarding the door closer as equipment for use at work in relation to any employees using it in the ordinary course of the platforms productive operations, whether employed by Talisman or not. As Lord Rodger points out in his paragraph 57, there was presumably a purpose in keeping the door closed (the appellant has suggested that they would on proof intend to show that the purpose included maintaining positive pressure within the control room as so avoiding the escape of potentially flammable gases in the event of a leak there). Any employees of the platform operator or any other undertaking operating the platform so used the door closer for and during access to and egress from the control room. The door closer was certainly not working properly, and it is pleaded that it was not suitable for the purpose for which it was provided because the screw which secured its arm was not properly in place (contrary to regulation 4(1)). It is also pleaded that (contrary to regulation 5(1)) it was not maintained an efficient state, in efficient working order and in good repair", for the same reason. On this basis and in the absence of any submissions to the contrary, Talisman, either as employer if they had employees using the door or as a person in control of the door closer being used by the employees of any other undertaking operating the platform, would be strictly liable under the 1998 Regulations for any injury caused to any such employees using the door closer at work.
90. That leaves only the question whether the same strict liability exists towards the appellant, who was not using the door for or during access to or egress from the control room and not using the door closer to close the door. He was trying to repair the door closer. Nonetheless, he was undertaking the repair in the course of work. It was a repair which might well, in other circumstances, have been undertaken by an employee of the platform operator, in which case the combination of the definition of use in Regulation 2(1) and of Regulations 4(1) and/or 5(1) would have made Talisman as employer and/or controller of the door closer strictly liable for its suitability for repair. Even if the employee was a specialist employee not otherwise engaged in the day-by-day use of the door closer, the Regulations would then still have imposed strict liability on Talisman: see Regulation 7(1). It would be curious if a platform operators strict responsibility under the Regulations for the safety of work equipment for repair should depend upon whether it chose to employ the repairers itself or to employ outside contractors to undertake them. So I agree that the appeal should succeed in relation to Talisman as platform operator.