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Ball v Street, Court of Appeal, 4 February 2005

10 February 2005
The issues

Provision And Use Of Work Equipment Regulations 1998 – Whether Applicable – Whether Breached

The facts

The Claimant, Mr Ball was a farmer. He hired Mr Street to mow some of his fields. The parties understood that Mr Street would bring and use his own machinery including a haybob (a piece of farm machinery towed behind a tractor for the purpose of turning and scattering new mown hay, and for organising the hay into rows). Mr Street worked at Mr Ball’s farm, helped sometimes by Mr Ball, until the day before the accident. On the day of the accident itself, Mr Street was unable to work but he agreed that Mr Ball could use the hay bob as part of the agreement between them.

Mr Ball tried to adjust the machine. As he did so part of the machine fractured and a piece ricocheted either from the machine or from the adjacent pneumatic tyre and entered Mr Ball’s left eye.

As a result he lost his sight in that eye. The Judge found that the Provision and use of Work Equipment Regulations 1998 applied in that although he was not present, Mr Street retained control of the equipment and that he was therefore a person within Regulation 3(b) i.e. a person who had control to any extent of work equipment or a person who used or supervised or managed the use of work equipment or the way in which work equipment was used at work.

He went on to find that the accident was an unforeseeable freak accident adopting the evidence of a joint expert consulting engineer, Mr Warman. Accepting that the obligation under Regulation 5 (to maintain an efficient state, in an efficient working order and in good repair) was absolute, he found that the breakage of a single spring would not prevent continued use of the machine and that it could not therefore be said that it was not maintained in other than an efficient state because the part could easily be replaced and was one of a number of parts such that the machine could continue to work. He went on to say that if he was wrong about that then Fytche v Wincanton Logistics precluded recovery in that Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 related solely to identified risks. He therefore dismissed the claim.

The Claimant appealed.

The decision

1. Did The Regulations Apply?

The Defendant had argued that on the evidence of the parties the contract between them was for hire of the Defendant’s services in mowing the fields and that whilst it was implicit in the hire of those services that the Defendant would bring and use his own machinery, there was no separate agreement for hire of equipment to Mr Ball for his own use at the time the accident occurred. The suggestion was that on the Sunday of the accident the use of the hay bob was no more than the use of a machine lent by a benevolent neighbour. The Trial Judge had found that the use of the hay bob on the Sunday was part of an overall commercial arrangement. Although the Defendant did not appear to have charged for the use of the hay bob he could have done so if he had wanted.

The Defendant retained control over the use of the hay bob in the sense of giving or withholding permission for its use, who was to use it, how it was to be used and for what purpose.

Such control was in connection with the carrying on of his trade namely hiring his services out together with the equipment owned or maintained by him and therefore he fulfilled the requirement of Regulation 3 (4).

The Regulations were applicable.

2. Was There A Breach Established?

Stark v The Post Office had established that the duty was an absolute one. In doing so they had followed Galashiels Gas Co v Millar, a decision of the House of Lords dealing with the duty expressed in similar terms in Sections 22 and 152 of the Factories Act 1937. In Galashiels the House of Lords had found that the obligation under that Act was absolute and continuing obligation even though it had been impossible to anticipate a failure before the event and to explain it afterwards and even though all reasonable steps had been taken to provide suitable equipment. Here there was abundant proof that the mechanism of the hay bob had failed and that that failure had resulted in injury to the Claimant. It was therefore no longer in good repair nor was it in an efficient state or efficient working order.

The Judge had been wrong to suggest that where there was an expendable part in a machine known to break from time to time and which could easily be replaced and which was one of a number of such parts so that the mechanism could continue working in an overall effective and efficient manner there was no breach of Regulation 5 (1). The Regulation did not define the employer’s duty in terms of the overall suitability of the equipment to perform the task for which it was designed, but it dealt with a duty to maintain it in an efficient state and working order and in good repair in respect of all its mechanical part so as to prevent injury to the person using the equipment. The object of the Regulations was a broad one namely to protect workman. The Recorder was also wrong to hold that Regulation 5 related solely to identified risks in terms of Fytche v Wincanton Logistics Plc.

Neither the reasoning nor the result in Fytche was applicable in this case however. The key to the decision in Fytche lay in the emphasis in the speech of Lord Walker to the subject matter of the 1992 Regulations as being the supplier of protective equipment as opposed to work equipment. The focus of the 1998 Regulations was not upon the identification and assessment of risk for the purpose of providing safety equipment suitable for a protection against a particular risk but upon general considerations of safety against the broad risk of accidental injury inherent in the use of machinery which is not maintained in good repair and efficient working order.

There had been a plea of contributory negligence based on the failure of the Claimant to wear safety goggles or to notice that the spring was defective. The first allegation failed on the basis of expert evidence and the second was not pursued. The Judge had failed in his Judgment following his decision to deal with the plea in defence of the Claimant himself had been breach of the Regulations himself. Any such breach by the Claimant was of the most technical kind. His use of the hay bob was a fleeting one and he had no realistic opportunity to maintain the machine. Damages would therefore be apportioned and reduced to the extent of 25% only.

Appeal allowed.

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