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

(back to preceding text)

45.  I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Hope of Craighead, Lord Mance and Lord Neuberger of Abbotsbury. I agree with very much of what each has stated, though favouring, for reasons which I shall give, the eventual conclusion reached by Lord Mance and Lord Neuberger. I am conscious of the difficulties which may be created for those who have to administer the law by too great a proliferation of opinions, but I feel bound to express as succinctly as possible the path of reasoning which has brought me to my own conclusion.

46.  Lord Hope has fully set out the facts and issues in the appeal, together with the material provisions of the Provision and Use of Work Equipment Regulations 1998 (“PUWER 1998”), and I gratefully adopt these without requiring to repeat them.

47.  Once one starts to consider the scope of the regulations it becomes apparent that one has to consider whether there is some limit on the types of equipment and work situation to which they extend and, if so, how and where it is to be drawn. Examples were posed in the written cases and in the course of argument before the House, some of which have been mentioned in your Lordships’ opinions. These may be very easily multiplied, but the type of problem before the House will typically arise where an employee is working away from his employer’s home base. If he is injured, in what circumstances will the employer be liable under the regulations? It is desirable that the House should define the boundaries of liability in a way which is readily comprehensible by all those who have to operate the Regulations, a range of persons extending well beyond practising lawyers familiar with personal injuries litigation.

48.  One possible, though extreme, solution would be to conclude that the employee is entitled to recover if he is injured in any circumstances when he is within the course of his employment. Such a very wide approach, which echoes that of the old statutory scheme of workmen’s compensation, would give an injured employee a ready means of obtaining compensation without having to search for a defendant who will be liable. It also has to be borne in mind that an employer can seek contribution from other parties who would if sued be liable. It would, however, be capable of generating much uncertainty about its extent, as witness the myriad of cases which fell to be decided under that legislation. It would involve a considerable departure from the principle of imposing liability upon those most responsible for the safety of workers. The enhancement of their safety and health and the prevention of accidents is one of the major aims of the Equipment Directive and the Regulations, and that wide approach would not accord with the emphasis on the employer’s responsibility which appears in the Directives. Waller LJ recognised this imperative in the Court of Appeal, when he stated (para 31):

“Strict liability should not flow out of a position in which there was no right and no responsibility to do that thing or insist on the doing of that thing for which strict liability is being imposed.”

I accordingly consider that such an approach would not be the right solution.

49.  Your Lordships are all in agreement that the extent of the Regulations must have some limit, but the issue which we have all found difficult is to determine where the boundaries lie. Attempts were made in earlier cases to fix a limit by restricting the ambit of the phrase “work equipment", but the House held in Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46, [2008] ICR 863 that the limitation accepted in that case by the Second Division of the Court of Session, following the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830, [2004] ICR 1467, could not be supported and that the breadth of the definition should not be restricted unnecessarily. It was conceded in the present case that the ramp was work equipment, and although there might have been room for debate about that conclusion I am not minded to refuse to accept the concession.

50.  The other approach, which has found favour with your Lordships, is by the avenue of restricting the breadth of application of Regulation 3(2), which provides:

“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 phrase “provided for use” does not give rise to much difficulty, but the words “used . . . at work” are capable on their face of extending to a great breadth of situations, including the examples to which I referred in paragraph 47 above.

51.  In the Court of Appeal Waller LJ sought (para 31) some criterion for determining that the employer had a sufficient right over, or the beginnings of a responsibility for, the construction or maintenance of the ramp in question so as to make it proper to impose liability for breach of statutory duty. He had previously referred, apparently with approval, to Pill LJ’s emphasis in PRP Architects v Reid [2006] EWCA Civ 1119, [2007] ICR 78 on the employer’s control over the work equipment and concluded (para 35):

“There must, in my view, at the very least be factors from which can be spelt out some right … to carry out maintenance before it is right to impose strict liability for failure.”

Richards LJ placed particular emphasis on the concept of control, which was also the basis on which Rimer LJ decided the case.

52.  In your Lordships’ House Lord Hope, with whose opinion my noble and learned friend Baroness Hale of Richmond is in agreement, has also adopted the test of control. Lord Neuberger has favoured the same criterion, although it took him to a different conclusion on liability. Lord Mance, on the other hand, sought some specific nexus between the work equipment and the employer’s undertaking. He took as the test (para 65)

“whether the work equipment has been provided or used in circumstances in which it was as between the employer and employee incorporated into and adopted as part of the employer’s business or other undertaking, whether as a result of being provided by the employer for use in it or as a result of being provided by anyone else and being used by the employee in it with the employer’s consent and endorsement.”

Lord Neuberger has characterised Lord Mance’s approach as focusing more on the control which the employer has over the equipment itself, whereas Lord Hope concentrates more on the control which the employer has over the employee’s use of the equipment (para 83).

53.  My own opinion has swung around to a large extent since I commenced consideration of the issues in this appeal, but I have come to the firm conclusion that I am in agreement with the approach espoused by Lord Mance. As Lord Hoffmann said in Spencer-Franks, at para 26, the Regulations should be interpreted to accord with the principle stated in the Work Equipment Directive. Articles 3 and 4 of the Directive refer throughout to work equipment made available or provided to workers in “the undertaking and/or establishment". The subsequent provisions, which provide for inspection of work equipment, specific risks, ergonomics and occupational health and informing and training of workers, are all posited upon this basic definition of relevant work equipment. The Regulations have not followed the same wording, though they were intended to implement the requirements of the Directive, but instead adopted in Regulation 3(2) the phrase whose meaning is critical to the determination of this appeal, “provided for use or used . . . at work". Whatever was in the draftsman’s mind when he fashioned this phrase, it obviously has to be limited in some manner in order to limit the ambit of possible liability. In my view that is best done by resort to the concept of the undertaking and/or establishment. This would exclude an employer’s liability for defects in such things as the chair in the committee room in the House of Lords or the escalator in the Westminster Underground station. It might or might not extend to the lift in PRP Architects v Reid [2007] ICR 78, as to which I would reserve my opinion. It could include the door closer in Spencer-Franks, which was within the purview of the employer’s concern for his employees when carrying out work on the oil rig and so can be regarded as being within his undertaking or establishment. Similarly, I think that defective scaffolding on a building site on which the employer is a subcontractor would ordinarily come within the ambit of liability. It would depend on the facts, as so often in such cases, whether a defective tool belonging to the main contractor which is borrowed by a subcontractor’s employee comes within the definition of work equipment used by the employee at work. If liability attaches in such a case, the employer may of course have recourse against the owners of the tool, and one should not overlook the relevance of compulsory employer’s liability insurance in considering the policy of the legislation.

54.  When one applies this principle to the facts of the present case, I am in agreement with Lord Mance and Lord Neuberger that liability for the condition of the ramp should not attach to the respondent employer. The respondent council did not supply or repair the ramp. It had inspected it at an earlier stage, but, as Lord Mance states (para 70), it was merely being careful of its employees’ safety and such care should not give rise to liability which is not otherwise covered by its statutory duty. I cannot conclude that the ramp came within the respondent’s undertaking or establishment, any more than the much-discussed chair or escalator.

55.  I would therefore dismiss the appeal.

LORD MANCE

My Lords,

56.  I have had the benefit of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I gratefully adopt his account of the facts and of the terms of the Provision and Use of Work Equipment Regulations 1998.

57.  The present appeal turns primarily on the scope of the definitions in regulation 2 and on the terms of regulation 3, set out by Lord Hope. It is accepted, and I am prepared to proceed on the basis, that the ramp was in an abstract sense work equipment, in that it could be contemplated that it would from time to time be used by persons including those at work, who might include a taxi-driver or a council employee like the appellant sent to the house to pick up the owner, Mrs Cotter, in her wheel-chair.

58.  It seems to me immaterial to the outcome of this appeal whether this is all that is required to satisfy the definition of work equipment in regulation 2(1) or whether the purposive phrase “for use” in that regulation itself refers to use in a more contextual and less abstract sense. This is because Mr Limb QC acknowledged, when opening the appeal, that the regulations involve on any view a second relevant question. That is whether, in respect of the respondent council as the appellant’s employer, it was relevant work equipment, in particular for the purposes of regulation 3(2), which imposes strict responsibilities on an employer for “work equipment . . . provided for use or used by an employee of his at work".

59.  The one matter that is clear is that an entirely literal approach to the words “or used” in regulation 3(2) cannot be correct. On an entirely literal approach, an employer would be strictly liable for a defect in an employee’s private drill which the employee, after leaving the work equipment supplied to him on the underground, had decided against company instructions to use because he wanted to finish work early rather than return to the company premises to obtain a spare set. Or a solicitors’ firm would be strictly liable to its clerk who was required to attend a House of Lords hearing for injury caused by a defect in the Westminster Underground Station lift or the House of Lords Committee Room chair used by the clerk. The time is however long-since past when legislation, especially legislation implementing this country’s European obligations, is given an entirely literal, as opposed to a purposive, effect.

60.  The starting point is that the Regulations must be construed on the basis, stated in the recital to the Regulations, that they were intended to give effect to the proposals submitted by the Health and Safety Commission (“HSC”) which were in turn “guided by the need to implement the European Directive", viz the Work Equipment Directive 89/655/EEC, itself made pursuant to the Framework Directive 89/391/EEC: see per Lord Hoffmann (at paras. 3 and 26), Lord Rodger of Earlsferry (at para. 32) and myself (at paras. 79-82, 88 and 91) in Spencer-Franks v. Kellogg Brown and Root Ltd. [2008] UKHL 46, [2008] ICR 863.

61.  The Directive sets minimum standards, but the HSC went on to make clear that the domestic intention was that, “while ensuring the levels of safety are maintained ….. we do not go beyond the Directive unless there are good grounds for doing so". The only relevant area in which the HSC in its Explanatory Note identified an intention to go beyond the Directive concerned the responsibilities imposed under regulation 3(3) to (5) on persons having control of work equipment, other than employers. See Spencer-Franks para. 81.

62.  The change in formulation between Article 3(1) of the Directive (imposing responsibility for “work equipment made available to workers in the undertaking and/or establishment”) and regulation 3(2) (imposing responsibility for work “equipment provided for use or used by an employee of his at work”) was not signalled in the HSC’s Explanatory Note as being of any significance. I share Lord Hoffmann’s view (in paras. 22 to 26 in Spencer-Franks) that no major extension of the scope of responsibility can thereby have been intended, and that the regulations should in this respect be “interpreted to accord with the principle stated in the Directive". He suggested, and I would agree, that the words “or used” may have been “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".

63.  In Spencer-Franks both Lord Neuberger (at para 97) and I (at paras. 86-88) expressed sympathy with Lord Rodger’s suggestion (at paras. 50-53) that whether an item performed a useful, practical function within and in relation to the purposes of the business could assist to define the scope of application of the regulations. Ultimately, the question is a composite one, with both abstract and specific aspects. The definition in regulation 2(1) may be seen, as Lord Hoffmann evidently saw it, as involving an issue entirely divorced from the issue arising under regulation 3(2) which is whether the equipment was work equipment in relation to the particular employer’s undertaking. Or the words “or use", with the purposive aspect to which Lord Hoffmann also referred (para. 10), may be seen as a precursor to the, in this case critical, enquiry whether the equipment was work equipment in relation to the particular employer’s undertaking. What matters is that some specific nexus (beyond the mere fact of use) is required between the equipment and the employer’s undertaking, before the employer comes under the strict responsibilities imposed by the regulations.

64.  There are in my opinion other clear pointers towards the need for such a nexus and the character that it might have. Regulation 4(2) speaks of an employer as “selecting work equipment", a phrase which I see as general (particularly against its background in article 3(2) of the Directive) although it can and should no doubt be interpreted broadly. Regulations 4, 5 and 6 impose obligations which employers can only sensibly have been intended to perform or be responsible for in respect of equipment within the direct sphere of their undertaking or control. I note inter alia the obligation on every employer under regulation 5(2) to “ensure that where any machinery has a maintenance log, the log is kept up to date", the obligation under regulation 6(1) to “ensure that, where the safety of work equipment depends on the installation conditions” it is inspected after installation and before being put into service, etc., and the obligation under regulation 6(4) to “ensure that no work equipment - (a) leaves his undertaking; or (b) if obtained from the undertaking of another person, is used in his undertaking, unless it is accompanied by physical evidence that the last inspection required to be carried out under this regulation has been carried out".

65.  How then is the nexus to be defined? Since regulation 3(2) is dealing with situations where there is a direct employment relationship, I would myself take as the test whether the work equipment has been provided or used in circumstances in which it was as between the employer and employee incorporated into and adopted as part of the employer’s business or other undertaking, whether as a result of being provided by the employer for use in it or as a result of being provided by anyone else and being used by the employee in it with the employer’s consent and endorsement.

66.  Lord Hope suggests a test of control. If that means control in the limited sense of making the employer liable under regulation 3(2) only to the extent of his control, it is difficult to see why regulation 3(2) is there at all. Yet regulation 3(2) is on its face the primary regulation. If, on the other hand, it means that any aspect of control (whether of the work equipment, or of a person using, supervising or managing the use of work equipment, or of the way in which work equipment is used) suffices to make an employer liable for any breach of the regulations, that goes too far. A solicitor’s firm has control of its clerk or of his or her use of work equipment, but that this cannot be sufficient to make it liable for the defective Westminster Underground Station escalator or House of Lords Committee Room chair. It is for that reason that I would adopt and apply under regulation 3(2) a test based on Lord Rodger’s reasoning, which requires the work equipment to be incorporated into and adopted as part of the employers’ undertaking. If control is any sort of guide to the scope of regulation 3(2), then it can in my view only be in the sense of control over the work equipment.

67.  On the facts of this case, I do not consider that it can properly be said that the ramp was either incorporated into and adopted as part of the council’s undertaking, or indeed under their control. In my view, the judge was too kind when he said that the council had “control” of the ramp. They did not provide it. They did not own or possess it. They did not have any responsibility or indeed any right without more to repair it. It was no more than part of the environment, like the Westminster Underground Station escalator or the House of Lords chair, which any employee must face, when performing his or her functions at work away from any premises or place occupied by his employer.

68.  In saying this, I do not find it is necessary in this case to express any view on the correctness or otherwise on its own particular facts of the decision in PRP Architects v. Reid [2007] ICR 78. Further, if control has any role as a guide, I do not regard regulation 3(3)(b) as pointing to an interpretation of regulation 3(2), or to the application of a concept of “control” (if relevant by implied extension to that regulation), covering this case. Regulation 3(3) extends the responsibilities imposed by the regulations to any person (other than an employer) who has “control to any extent” of (i) work equipment, (ii) a person at work using, supervising or managing the use of such equipment or (iii) the way in which it is used at work. But it only does so “to the extent of such control". The breach here alleged to have caused the appellant’s injury was a defect in the work equipment, not in the way the appellant did, or was trained to do, her work or in the way she used the ramp. Accordingly, it is no use pointing to the council’s undoubted control over the appellant’s movements or activities.

69.  The Regulations are not on any view an all-embracing protection which renders superfluous, at places with which an employer has no connection except that his or her employee has while working to visit them, the Occupiers’ Liability Acts or ordinary common law duties of care or such other duties as may in this case have been owed by the National Health Service as suppliers of the ramp. Courts should be careful not to impose on employers responsibilities which go far beyond those at which the Directive and Regulations can in my opinion have been intended to impose. The judge’s (over) generous interpretation of the concept of control would, if accepted, add both unjustified stringency and undesirable uncertainty into this area.

70.  It is of course true that the council inspected Mrs Cotter’s home and prepared Personal Handling Plans - Transport dated 14 November 2001 and 9 February 2004, in each case identifying the means of access as the French windows where the ramp stood, though not referring expressly to it. In making such inspections, the council observed nothing amiss with the ramp, because any defect was latent. What that shows is that the council was careful, not that it controlled the ramp or incorporated it into its undertaking, or should be strictly responsible for any defect in it. The ramp was someone else’s equipment on someone else’s premises visited by its employees while at work. “I am monarch of all I survey” is not to be taken literally as opposed to literarily. In carrying out the inspection, the council was simply fulfilling its duty under regulation 3(1) of The Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) to “make a suitable and sufficient assessment of - (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work". Performance of that duty cannot have the Catch 22 consequence of making the council strictly liable for latent defects in equipment which they did not provide, which was not part of its undertaking and which it had no obligation to provide or repair.

71.  Likewise, it is true that, if the defect in the ramp had been observable on careful inspection, which it was not, the council could have refused to send its employees to collect Mrs Cotter, or might itself even have procured and made available another ramp (e.g., a permanent ramp or, if feasible, a portable ramp to accompany its employees on visits to Mrs Cotter). Neither possibility shows any form of control of the actual ramp which caused Mrs Smith’s injury. As to the former, no employer would or should allow its employee to be exposed to unsafe conditions anywhere, if it knew of them.

72.  As to the latter, whether this would or might have happened is on the material before the House speculation, especially when the council did not supply the actual ramp which caused the injury. Although not the subject of any submissions or indeed reference in this case at, so far as appears, any level, it may well be that the council would, as her local authority if so requested by or on behalf of Mrs Cotter, have been obliged to decide whether the ramp needed repair or replacement and to undertake this if and as found necessary: see Disabled Persons (Services, Consultation and Representation) Act 1986, s.4 and Chronically Sick and Disabled Persons Act 1970, s.2. There has never been any suggestion that any such request was made or that any potential duties under these statutes have any relevance in this case. Had there been such a request and had the council then repaired or replaced the ramp, it could then for the future very plausibly have been argued that it had provided and adopted the new or repaired ramp as work equipment in its undertaking; certainly it would have done so if it supplied its own ramp for its own employees to bring with them and use on each occasion they came to take Mrs Cotter to the Day Centre. But responsibility under regulation 3(2) depends upon the actual position and the scope of the actual undertaking (or on Lord Hope’s formulation upon actual control), not on a hypothetical scenario that never arose.

73.  For these reasons, I would myself dismiss this appeal. Since preparing this speech, I have had the benefit of reading in draft the speech of my noble and learned friend, Lord Neuberger of Abbotsbury. I agree with his analysis of the difference between Lord Hope’s and my own views and with the reasons that he gives for agreeing that the appeal should be dismissed.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

74.  The issue on this appeal is whether a wooden ramp, placed outside the front door of Mrs Gina Cotter’s house by the National Health Service ten years earlier, constituted “work equipment” “provided for use or used . . . at work", within regulation 3(2) of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306), by Mrs Jean Smith, when, in the course of her employment with Northamptonshire County Council as a driver and carer, she was pushing Mrs Cotter in her wheelchair from her home to a minibus in which Mrs Cotter was to be conveyed to a Council day centre.

 
Continue  Previous