(back to preceding text)

22.  Your Lordships have not been asked to decide whether the ramp was “work equipment", as this point is no longer disputed by the council. Had it been there for use only by members of Mrs Cotter’s family as a means of transporting her to and from her house in her wheelchair for their own purposes it would not have qualified as work equipment at all. But I would hold that the definition was satisfied in this case. Like the lift in PRP Architects v Reid [2007] ICR 78, the ramp was there for use by anybody including employees of the council such as the appellant who in the course of their work had to move Mrs Cotter in and out of her house by means of her wheelchair. Ramps are like ladders. They are simple pieces of equipment which serve a useful and practical function. It matters not by whom this ramp was provided. The definition directs attention at this stage only to the ability of the item to be used at work, not to the question by whom or for whom it was made available.

Regulation 3(2)

23.  In Spencer-Franks v Kellogg Brown and Root Ltd, para 55 Lord Rodger said that the terms of regulation 3(2) are broadly formulated and that they are capable of producing results that in some cases might be regarded as questionable. It was therefore to this aspect of it that Mr Preston directed his argument in his response to Lord Hoffmann’s indication that it was in this provision that the solution to the difficulty must be found as it delimited the area of the employer’s responsibility. The phrase “shall apply to work equipment provided for use or used by an employee at his work” does introduce a limiting factor. It applies to equipment for use at work that is provided for use or is used by the employee. It is questionable whether the ramp was “provided” by the council within the meaning of this phrase. But there is no doubt that it was being “used” by the appellant. As Smith LJ said in Couzens v T McGee & Co Ltd [2009] EWCA Civ 95, para 33, it is not conceivable that Parliament could have intended to impose strict liability on an employer in respect of an item of equipment about which he did not know and could not reasonably have been expected to know. But in this case it is plain that the council knew that the appellant would be likely to use the ramp. So the simple answer to this case is that, as the ramp was work equipment and the appellant was using it at her work when she had her accident, the Regulations applied to it.

24.  That however, says Mr Preston, is too simple. Various extreme examples were mentioned in the course of the argument of things being used where it would be, to say the least, surprising if the Regulations were meant to apply. A defective chair that just happened to be in premises that an employee was visiting, such in as your Lordships’ Committee Room, was one example. A defective escalator in the London Underground was another. Extreme though those examples were, they served to underline an important point. The mere fact that an item such as a chair or an escalator which may be described as “work equipment” happened to be used by the employee who was working for an entirely different undertaking than that for whose purposes it was provided ought not to be enough to impose strict liability on his employer in the event of an accident. That result may not be at all surprising where the accident takes place in the employer’s own premises. But it may be harsh on an employer whose activities are not confined to the premises which he controls or occupies. The situations contemplated by the legislation which the modern regulations have superseded such as the Mines and Quarries Act 1954, the Factories Act 1961 and the Offices, Shops and Railway Premises Act 1963 were not of that kind. Even against the background of the Equipment Directive, it is hard to see where the justification lies for imposing strict liability on an employer for something that he has not provided or authorised for use at work, about which he does not know and cannot reasonably be expected to know and is not able to do anything about.

25.  I should say at once that I do not think that the present case answers to that description. The ramp was not installed by the council. It did not belong to them, and they had no right to require Mrs Cotter or the NHS to repair it if it was defective. But they knew that it was there and they were able to and did inspect it. As the judge found, their employees were trained to inspect it too. The situation was not one with which they were unfamiliar or about which they could do nothing. It was in Mrs Cotter’s interest as well as that of the appellant that they should instruct the appellant not to use it and to provide her with alternative equipment if they were not willing to accept responsibility for its use. The judge did not make any findings about what alternative courses of action were available had they taken this view. But he said that he had no doubt that the appellant would have notified the council if she had realised that there had been an obvious defect: para 39. As it happened, the ramp was not in an obvious state of disrepair before the accident such as to put someone on notice that there was something wrong: para 13. As I have said, that does not afford a defence given the strict nature of the obligation to maintain that regulation 5(1) imposes. But there is no doubt that the council were aware of the existence of the ramp, of its reason for being there and of the fact that the appellant was using it for the work they employed her to do. She, for her part, was using it because they knew that she had to use it to do her job and they had not told her not to use it. She had no option but to use it because they had not provided her with an alternative.

26.  The Court of Appeal said that the council had no control over the ramp because they did not have the ability to maintain it. But the judge found that they had some considerable degree of control for the reasons he gave in para 40, and I see no reason for disagreeing with this finding. He was right to take a wider view of what amounted to control for this purpose. As Mr Limb QC put it, the council decided to take the benefit of the ramp as a means of enabling the appellant to do her work. It was not just being “used” by her. It was being used by her for work that the council employed her to do. And it was performing a useful practical function as far as their undertaking was concerned which they knew about and had authorised. I would hold therefore that this is the kind of situation that may reasonably be thought to be within the scope of the Regulations.

27.  As for the limiting factor, I think that the best guidance as to the intended scope of the Regulations is to be found in regulation 3(3). It states that the requirements that they impose shall also apply (a) to a self-employed person, in respect of work equipment he uses at work and (b) to “a person who has control to any extent” of work equipment, a person at work who uses or supervises or manages the use of work equipment or the way in which work equipment is used at work, and to the extent of his control. The introduction of the concept of control in that extended sense in this context is instructive. The word “also” in the introductory part of regulation 3(3) indicates that the purpose of its provisions is to extend the application test set out in regulation 3(2), as Ward LJ said in Mason v Satelcom Ltd [2008] EWCA Civ 494, [2008] ICR 971, para 43. But the test which it applies is nevertheless a helpful indication of how regulation 3 as a whole is intended to operate. It suggests that control is indeed the underlying assumption on which the application provisions throughout this regulation are based. As Smith LJ observed in Couzens v T McGee & Co Ltd [2009] EWCA Civ 95, para 29, the employer must have “a sufficient degree of control” over the work equipment in order to justify the imposition of strict liability. This was not something that needed to be stated in so many terms in the case of the self-employed person. A self-employed person who uses work equipment at work can be assumed to have control over it and the way it is used. So the absence of this word from subparagraph (a) of regulation 3(3) does not mean that the concept of control has no place in his case.

28.  Conscious though I am of Neuberger LJ’s warning in PRP Architects v Reid [2007] ICR 78, para 38, against attempts to redefine a statutory expression, I would carry the same concept into the case of the employer too. A sufficient degree of control can be assumed to be there where the work equipment is “provided for use … by an employee of his at work". The act of providing it or authorising its use is an exercise in decision-taking as to whether it should be used at all and, if so, as to the way in which it should be used. That is a situation which, not unreasonably, attracts the obligations that Parts II to IV of the Regulations set out. Applying the Regulations to cases where work equipment is provided or authorised for use but has not yet been used promotes health and safety. The best way of avoiding accidents is to ensure that work equipment is suitable for the purpose before it is used. The difficult area is that where it is found that an employee has simply “used” the work equipment at work. I agree with my noble and learned friend Lord Mance that there needs to be a nexus between the work equipment and the undertaking that the employer is carrying on. But in my opinion the concepts of authorisation and control of the employee’s use of it by the employer provide that nexus. Lord Mance’s reference to the use of the work equipment with the employer’s consent and endorsement (see para 65) also meets the test that I have in mind.

29.  The situations referred to in regulation 3(3)(b) indicate what “control” should be taken to mean in this context. They are all situations where the person has provided or authorised the work equipment for use at work. Control of its use to any extent will do, the person being liable - as the concluding words of the sub-paragraph indicate - to the extent of his control. He does not have to ensure that the maintenance log is kept up to date, for example, if this is under the control of someone else. But he does have to fulfil obligations that are under his control, such as ensuring that the equipment which he authorises for use by the person at work is suitable for the purpose for which it is to be used and that it is in good repair. Understood in this way, regulation 3(2) will serve the purposes indicated by the Equipment Directive without exposing employers to strict liability in situations where they are not in a position to exercise control to any extent of the equipment that is used at work by the employee.

30.  Lord Mance is of the opinion that the ramp cannot be said to have been incorporated and adopted as part of the council’s undertaking: para 67. I understand my noble and learned friend Lord Carswell to be of the same opinion: para 53. It seems to me that this test runs into the difficulty to which my noble and learned friend Lord Neuberger of Abbotsbury draws attention in para 77. It is a different test from that set out in the legislation, and it throws up problems that the legislation itself does not give rise to. Moreover it can lead to a result which is contrary to that reached by Lord Mance and Lord Carswell. As Lord Neuberger points out in para 81, the fact that the council knew and effectively approved of the appellant’s use of the ramp as a means of taking Mrs Cotter to and from her house could be said to have incorporated it into the council’s undertaking, at least when it was being so used by the appellant. It all depends what one means by “undertaking". In its ordinary meaning it is a word of wide application. Article 3(2) of the Equipment Directive, which refers to “the hazards which exist in the undertaking and/or establishment, in particular at the workplace” indicates that it extends to any place where work is being carried out for the employer’s purposes and to the work equipment that he proposes to use there. In R v Associated Octel Co Ltd [1996] 1 WLR 1543, 1547, Lord Hoffmann said that a person who is conducting his undertaking is free to decide how he will do so, and that anything which constituted running Octel’s chemical plant was part of the conduct of its undertaking. In this case the council’s undertaking included taking persons like Mrs Cotter to a day centre, and it was for the council to decide how this operation was to be conducted. It seems to me that the ramp was indeed part of their undertaking, as it was being used by the appellant with their consent and endorsement for the work she was doing as their employee in the place where the ramp was situated of getting Mrs Cotter in and out of her house.

Conclusion

31.  In this case the ramp was not provided by the council for use by the appellant. But it was being used by her at work with their knowledge and with their approval. They would have had to have made other arrangements if they were not satisfied that it was suitable for use by her at work, but they did not do so. I would hold that there was a sufficient element of authorisation and control or, if one prefers, of consent and endorsement of her use of the ramp for the obligation that regulation 5(1) imposes to apply in this case. If incorporation and adoption of the ramp as part of the council’s undertaking is the test, I would hold that it was satisfied too. For these reasons, and for those given by my noble and learned friend Baroness Hale of Richmond whose opinion I have had the advantage of reading in draft and with which I am in full agreement, I would allow the appeal and restore the order made by Judge Metcalf.

BARONESS HALE OF RICHMOND

My Lords,

32.  Perhaps it all depends upon how you tell the story. I tell it like this. A wooden ramp was supplied by an NHS occupational therapy department so that a severely disabled, wheel-chair bound patient, Mrs Cotter, could get in and out of her home. It was the only way Mrs Cotter could get in and out of the house. The same ramp was used by the local social services authority when taking Mrs Cotter to and from their day centre. The department employed Mrs Smith to transport Mrs Cotter up and down the ramp. Mrs Smith was injured when the edge of the ramp gave way under her foot. No-one was negligent. The ramp was defective. The issue is whether the ramp was “work equipment” within the meaning of regulation 2(1) of the Provision and Use of Work Equipment Regulations 1998 and “provided for use or used by an employee . . . at work” within the meaning of regulation 3(2). If it is, the authority are liable under regulation 5(1) for failure to ensure that the work equipment “is maintained in an efficient state, in efficient working order and in good repair".

33.  "Work equipment” means “any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)". “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". The authority now concede that the ramp was “work equipment". The concession was made because, in Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46, [2008] ICR 863, at para 21, Lord Hoffmann had indicated that “work equipment” was not to be given “an artificial and relativist” meaning; the area of the employer’s responsibility was delimited by regulation 3(2). However, it is difficult to separate the two, because regulation 3(2) imposes responsibility whenever such equipment is “provided for use or used". The critical words are derived from the combination of “for use” in regulation 2(1) and “at work” in regulations 2(1) and 3(2).

34.  Wide though the wording of both regulations is, the words “for use . . . at work” do seem to me to import certain limitations. The main limitation is that the use at work be known about and authorised by the employer. The equipment could not otherwise be “for” such use, whether this means “for the purpose of” or “with a view to", use at work. Mr Patrick Limb QC, who appeared for Mrs Smith, accepted that authorisation was required. Another limitation, it seems to me, is that the actual use made of the equipment be for the purposes of the employee’s employment. “At work” is not a geographical description, applying to everything used at a particular place of work and nothing outside it, for some work equipment is clearly used by employees whose work takes them outside their employers’ premises. The postman’s bicycle in Stark v Post Office [2000] ICR 1013 is a good example. Neither can “at work” be a purely temporal description, applying to everything the employee chooses to use during working hours. It has to be something specifically “for” the work which the employee is employed to do. The i-pod brought in to listen to while working would not, it seems to me, be work equipment. The employer may authorise its use but it is not used or provided for the purposes of the work which the employee does for the employer.

35.  This ramp was clearly “apparatus” or an “installation” and equally clearly “for use at work". It was there for the use of people who were at work, such as the NHS staff who installed it and Mrs Smith and her colleagues, and to use for the purposes of the work which they were employed to do. The fact that it was also used by people, such as Mrs Cotter’s family and friends, who were not at work makes no difference, as the use does not have to be exclusive. The use was authorised by the employer. The use was also for the purposes of Mrs Smith’s employment. Indeed, it was the only way in which she could do her job.

36.  So much for the words used. Are there any further limitations to be imported? The essence of the issue between my noble and learned friends, Lord Hope of Craighead and Lord Mance, is that Lord Hope would import a requirement that the employer be in control either of the equipment or of the use which the employee makes of it, whereas Lord Mance would concentrate on the control which the employer has over the equipment itself. Both draw some support from regulation 3(3). Regulation 3(3) does not apply to an employer. It extends the obligations imposed upon employers to certain other people. Thus it provides:

“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) . . . 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.”

37.  As this is extending to such other people the same obligations which employers have, it must be contemplating that employers owe those obligations at the very least in the same situations as are there described. These include, not only control of the equipment itself, but also control of the person who uses the equipment and control of the use made of that equipment. There is nothing in regulation 3(3) to limit responsibility to those in control of the equipment; a fortiori there can be nothing in regulation 3(2) limiting an employer’s responsibility to equipment over which they are in control. It is enough if they can tell the person who might use the equipment not to use it or how to use it.

38.  The arguments have been tested against some interesting examples of defects in such things as bridges, escalators, lifts and other public infrastructure which an employee may be required to use in the course of travelling, not to or from work, but in the course of his work, for example when coming from a solicitor’s office to assist counsel arguing a case before this committee. Another example discussed was a defect in the chairs upon which such people are required to sit during our hearings. Realistically, the employer has no choice in such matters and cannot simply forbid the employer to use the mode of transport or item of equipment in question. Control over the person who uses the equipment at work must import an element of choice. Regulation 3(3) extends liability only to the extent of the control in question. So if this does colour the meaning of regulation 3(2), the employer would not be responsible for the use of equipment where there was no real choice about whether to allow the employee to use the equipment in question.

39.  Here the authority clearly were in a position to decide whether or not to allow Mrs Smith to use this ramp. They inspected it in order to satisfy themselves that manoeuvring Mrs Cotter up and down the ramp would comply with the Manual Handling Operations Regulations 1992. That, I agree, does not make them liable under a completely different set of Regulations. But it does indicate that they had a real choice whether or not to let Mrs Smith use the ramp. Indeed, Mr Preston, for the authority, argued that if there were to be liability in a case such as this, local authorities would have to stop relying on other people’s ramps and supply their own. There could be no clearer indication that this authority were very much in control of Mrs Smith and her use of the ramp, and that they had an obvious alternative open to them. Thus they would in my view fall squarely within the wording of regulation 3(3) if they were not Mrs Smith’s employers and I see no reason why they should not also fall squarely within regulation 3(2) as they are her employers.

40.  As to the policy considerations, discussed by my noble and learned friend Lord Neuberger, they are impossible for us to assess. On the one hand, the employer is being held liable for defects in equipment which he has no right to control. On the other hand, an employee has suffered injury, not only in the course of her work, but in the course of doing that which she was required by her employer to do. It has long been an accepted policy of our law that employers might have to compensate their employees for injuries suffered in such circumstances, irrespective of whether there was anything which the employer could have done to prevent it. This was not an invariable rule, but depended upon the wording of the particular legislation involved. Some obligations were expressed in terms of what was reasonably practicable; others contained no such limitation. Employers are required to insure against their liability, so any broader policy considerations come down to choosing which party is the better placed to effect and to bear the cost of such insurance. There can be only one answer to that question in a case such as this, which leaves us to speculate upon whether imposing liability in cases such as Mrs Smith’s would add so appreciably to employers’ liability insurance premiums as to put businesses or public services at risk. We are in no position to make judgments about such matters.

41.  In any event, in this case, the authority could have done something to prevent it. They could have supplied their own portable ramp for Mrs Smith to use; they could, with Mr and Mrs Cotter’s consent, have replaced the ramp supplied by the NHS; they could have declined to offer Mrs Cotter their services unless the ramp were replaced. The real objection is not that they had no choice, but that they were not negligent because the ramp was not obviously defective. But negligence is not the test under these or many other of the regulations dealing with health and safety at work, nor was it under much of the legislation which they replaced. Long ago, our law took the view that, as between the non-negligent employer who benefited from the employee’s labour and the non-negligent employee who suffered illness or injury at work, the law might often (though not invariably) favour the employee.

42.   For that reason, I am not persuaded that the European Directives are of much help in construing these regulations. Clearly, the regulations were meant to do at the very least what the Directives required United Kingdom law to do. But they were made, not under the vires of section 2(2) of the European Communities Act 1972, but under the vires of the Health and Safety at Work etc Act 1974. It is unlikely in the extreme that when the regulations were made there was any intention to adopt a different approach to the construction of legislation imposing liability upon employers than there had been under the previous law. Unlike other regulations in the same field, these regulations do not contain limitations based upon reasonable practicability or even assessment of risk

43.  I am further fortified in this view by the approach of Lord Rodger of Earlsferry, with whom Lord Mance and Lord Neuberger expressly agreed on this point, in the Spencer-Franks case at para 51, albeit in the context of the definition of “work equipment": “The machinery and apparatus etc of an undertaking are there to perform a useful, practical function in relation to the purposes of that undertaking". This ramp was not only performing a useful, practical function in relation to the purposes of this employer’s undertaking, it was absolutely essential to it. Without it, the authority could not have provided Mrs Cotter with the services which it was their business to provide for her. Lord Rodger had already made the point (at para 42) that the equipment did not have to be provided by the employer.

44.  My Lords, for these reasons and in agreement with my noble and learned friend Lord Hope, I would allow this appeal.

LORD CARSWELL

My Lords,