article
Playing safe
30th April 2009
The nature of the work undertaken by the emergency services –
not least the fire services - carries with it risks far greater
than those faced by the vast majority. When dealing with personal
injury claims, historically the courts have been alive to the need
of striking a balance between ensuring the safety of fire fighters
and allowing those within the fire services to work effectively.
However, over the years onerous statutory duties placed upon the
fire services and a perceived widening interpretation by the courts
of what those duties entail have resulted in operational and
logistical difficulties – none more so than when dealing with the
use of ‘work equipment’ by fire fighters.
Absolute duty
The Provision and Use of Work Equipment Regulations 1998 (PUWER)
governs the use of work equipment by the fire services and requires
every employer to ‘ensure that work equipment is maintained in an
efficient state, in efficient working order and in good
repair.’
In a landmark ruling in 2000 the Court of Appeal found that
PUWER imposed an absolute duty on employers to ensure that work
equipment remained in good working order and repair at all times –
in the event of injury to an employee no system of inspection and
maintenance could avoid liability even if a rigorous examination of
the equipment would not have revealed the fault.
The result of the Court of Appeal’s decision is that if an
injured employee can show that work equipment was defective and
that it was this which caused injury the claim will succeed.
Coupled with the gradual widening of what constitutes work
equipment, the role of the fire services as an employer is made no
easier.
Define work equipment
The wording of PUWER is in itself wide ranging, applying to any
machinery, appliance, apparatus, tool or installation for use at
work. Whilst a diverse range of items fall within the definition,
to include vehicles, tables, stepladders and lifts, the courts have
continued to push the boundaries. Only last year the definition of
work equipment was stretched further by the House of Lords - a
sprung ‘door closer’ was considered to be captured by PUWER and as
such the claimant succeeded after sustaining injury when the arm of
the ‘door closer’ struck him in the face whilst he was repairing
it.
Although it is arguable that the decision is confined to very
specific workplaces, the point remains open for interpretation and
in potentially extending the requirements under PUWER to items
which form a permanent part of the fabric of a workplace, the House
of Lords have further increased the duties on employers.
The future
In this time of significant change for the fire services - to
include increased requirement to work closely with other
authorities, emergency and voluntary services - the duties placed
upon them become ever more arduous. Without question, the
importance of ensuring all equipment is not only adequately
maintained and in good working order but also suitable for the
purpose for which it is being used is imperative if the safety of
fire fighters and the public is to be maintained. To an extent, the
legislation simply reinforces this. However, it is the perceptibly
stricter approach of the courts when faced with personal injury
claims which will undoubtedly result in further hurdles for the
fire services to overcome.
Only time will tell if the courts choose to limit the nature of
‘equipment’ which falls under PUWER. Of concern is that a further
widening of the definition would bring with it a risk of perverse
decisions – to take it to its extreme, could the fire services be
found strictly liable for injury to a fire fighter arising from the
structure and condition of premises he was attending in an
emergency situation?
It can only be hoped that a common sense approach is adopted and
a distinction drawn between, on the one hand equipment made
available to fire fighters for the purpose of undertaking their
duties over which the fire services have control and on the other,
items, to include premises and equipment, of which the fire
services have no direct control. Without such a distinction,
managing the risk to fire fighters in line with PUWER will become
increasingly difficult. We may find ourselves in an unfortunate
position where the role of the fire fighter is restricted further
by legislation.
save to PDF