UK: Another Door Closes For Defendant Employers!

Last Updated: 5 January 2009
Article by Roger Jones, Partner and Scott Nightingale

The House of Lords handed down judgment on 2 July 2008 in the Scottish case of Spencer- Franks –v- Kellogg Brown and Root Limited and Others (2008) UKHL 46, which heralds a change of interpretation in how the Courts should look at whether an employer has breached the Provision and Use of Work Equipment Regulations ["PUWER"] 1998, which replaced the previous PUWER 1992 regulations.

Facts

On 12 October 2003, the closer of a door in the control room of a North Sea oilrig was not working properly. Talisman Energy were the operators of the rig, and had contracted for KBR to supply workers to work on the rig. The Claimant, a mechanical technician employed by KBR, was asked to inspect and repair the door closer, which consisted of a spring mechanism attached to the door and which was connected by a linking arm to the door frame. The Claimant attempted to assess the tension in the linkage arm by backing off by half a turn, the screw that held it to the doorframe. This should not have disengaged the screw, but in fact the screw was pulled out and the arm hit the Claimant in the face removing 4 of his teeth.

Previous Case Law

The PUWER 1998 imposes an absolute duty on employers to ensure that equipment being used in their workplace is maintained in an efficient state, in efficient working order and in good repair. This has been the position since the well-publicised Court of Appeal decision in Stark –v- The Post Office (2000) determined under PUWER 1992. Mr Stark, a postman, was injured when he was flung from his bicycle as a result of a failed cable. It mattered not that the Post Office was found to have exercised reasonable care in implementing a programme of inspection and maintenance, nor that it was unlikely such inspection or routine maintenance of the bicycle would have revealed the problem and led to the replacement of the "defective" part. The Court of Appeal determined that the statutory duty to maintain the bicycle in an efficient state, and in efficient working order was breached at the moment the brake cable snapped.

But what about the situation in which the work equipment apparatus was being worked on (i.e. repaired) as opposed to being used? In Hammond –v- Commissioner of Police of the Metropolis (2004) a mechanic, employed by the Commissioner of Police, was working on the wheel of a police dog van when a wheel bolt sheered off causing the mechanic to suffer injury. The Court of Appeal held that PUWER 1992 did not extend to equipment or items being worked on as distinct from the equipment, which employees used to undertake their work. Thus a policeman driving the van was using work equipment, but the mechanic repairing it was not.

Decision

The House of Lords has now determined that the Court of Appeal's approach in Hammond was wrong. Lord Hoffman (who gives the leading judgment) held that the correct way of dealing with the issue of work equipment is to, "... first decide whether some apparatus is work equipment or not and then you decide whether the regulations apply in respect of it". He went onto say, "...I cannot accept that something can be work equipment in relation to one person but not in relation to another".

What should happen, following the Framework Directive 89/391/EEC, is that the employer has to take "measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their health or safety...".

Lord Hoffman firmly put the issue to rest in the following manner, "... in the Hammond case, the question which should have been asked was not whether the van was work equipment (it clearly was) but whether Mr Hammond was a worker in the undertaking to which it had been supplied. I should have thought he was – the policemen who drove the dog van and Mr Hammond were all employed by the Metropolitan Police. The fact that the van belonged to a separate legal entity, the Metropolitan police Authority, does not seem to me to be relevant".

However the situation would have been entirely different if a van were used by say the Royal Mail and it was taken for repair to an independent garage, since the mechanic would not be a worker for the "undertaking" of the Royal Mail to whose workers the van was supplied.

Comment

For those engaged in defending these types of claims, it appears that the major line of defence afforded by the Court of Appeal in Hammond has now been removed. There still remain a number of issues for Defendant employers to consider. As alluded to in the judgment, there may well be cases where it is difficult to decide whether an item should be treated as work equipment as opposed to being part of the fabric of work premises. Lord Hoffman, in giving the definition its ordinary meaning, decided that a door closer was work equipment. He considered whether it could be excluded from this definition by some implied qualification, "one possibility is that the equipment regulations impliedly exclude apparatus which forms part of the premises upon which the work takes place. The state of premises is treated separately from equipment by the Workplace (Health, Safety and Welfare) Regulations 1992 ... In the case of ordinary work premises on land, this might be a good argument. But I do not think it applies to equipment which is attached to an offshore platform".

Of course, each case will still be decided on its factual merit. It is still open for Defendants to argue that a piece of apparatus is not defective (for example it was simply misused) or that the Claimant's actions in using the apparatus at least contributed to the accident.

The full judgement can be found at:
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080702/spence-1.htm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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