UK: The Curious Tale Of The Lord Justices And The Ramp

Last Updated: 15 September 2009
Article by Andrew Sheppard

In Smith, the House of Lords has given guidelines as to the extent of liability imposed on employers under the Provision and Use of Work Equipment Regulations 1998, for defective work equipment which is not owned, or under the immediate control of a defendant employer.

It is ironic how the most prosaic of incidents lead to important cases which develop the law. From swigging ginger beer developed the famous snail in bottle case, and from pushing a wheelchair across a ramp we get the latest case on interpretation of the Work Equipment Regulations from the House of Lords.

The facts

Mrs Smith was employed as a carer/driver by the defendant Council. As part of her duties, she was required to collect a client from her home and take her by minibus to a day centre. The client in question was confined to a wheelchair. There was a wooden ramp leading from the living room of the client's house to a patio area outside. It had been installed by the National Health Service about 10 years previously but had been subject to inspection by the defendant Council subsequently and was not in an obvious state of disrepair prior to the accident.

Unfortunately there was a hidden defect with the ramp and, whilst wheeling the client to the minibus, the claimant stepped on the edge of the ramp which gave way, causing the claimant to stumble and injure herself.

Encouragingly for defendants, the claimant's claim failed both before the first instance trial judge and the Court of Appeal.

The House of Lords

Before the House of Lords, the sole issue was whether or not the ramp in question was Work Equipment so that the defendant Council would be fixed with strict liability pursuant to the 1998 Regulations. The Regulations only impose strict liability "in respect of work equipment... provided for use or used by an employee".

By a majority of 3–2, Their Lordships found for the defendant Council.

There was little difficulty in deciding that this was work equipment "provided for use" at work.

It was recognised, however, that if the phrase "used by an employee" was given a literal interpretation, the breadth of possible liability was unacceptably wide. The question was where the boundary should lie, and how to limit the extent of the regulation.

The court's answer to this was to look to the purpose for which the regulations were implemented. The answer to this question was to give effect to European Union law, namely the Work Equipment Directive which indicated that liability should only be imposed for "work equipment made available to workers in the undertaking and/or establishment". On this basis, Lord Mance, supported by Lords Neuberger and Carswell, considered that for liability to attach under the UK Regulations there had to be a clear and specific connection, which went further than the mere fact of use, between the work equipment and the employer's undertaking.

Lord Mance felt that the relevant test should be whether the defective work equipment giving rise to a claim had been provided or used in circumstances that it was incorporated into and adopted as part of the employer's business or other undertaking. In this case, he did not consider that it could be said that the ramp which gave way was either incorporated into, or adopted by the defendant Council, and as it was not under the Council's control to any material extent, there was no liability. In the circumstances, the claim was dismissed.

Key points for defendants

  • The decision in Smith identifies the extent to which the regulations apply to equipment which is not within the direct sphere of an employer's undertaking or control. It is a crucial, and welcome, decision.
  • The decision recognises that there must be a limit to the extent of strict liability imposed by these regulations, and that they are not to have a literal interpretation.
  • The correct mechanism to limit the extent of liability is to consider whether there is a connection, beyond the fact of use, between the work equipment and the employer's business undertaking.
  • Equipment which has not been provided or used in circumstances in which it can reasonably be said to be incorporated into and adopted as part of an employer's business or undertaking, will not attract strict liability under the regulations.
  • This area of the law is complex, and careful thought must be given to each case to identify potential defences. But this is another case which cuts back the concerns about strict liability within the Workplace

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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