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Smith v Northamptonshire County Council, Court of Appeal, 11 March 2008

28 March 2008
The issues

Provision and Use of Work Equipment Regulations 1998 – PUWER 1998 – whether requirement on Local Authority required to maintain access ramp used by carer at disabled client’s house – whether ramp “work equipment”.

The facts

The Claimant was employed as a carer / driver by the Council. She was required as part of her duties to collect Mrs Cotter from her home and take her by mini bus to a day centre. She had carried out this operation 3 times a week for 8 years before her accident on the 1st December 2004. On that day the Claimant was pushing Mrs Cotter in a wheelchair down a wooden ramp which led from the living room to the patio area outside Mrs Cotter’s house. As the Claimant stepped on the edge of the ramp it gave way, causing her to fall and injure herself.

The ramp had been installed by the NHS in the 1990’s. It was made of wood and left outside on a permanent basis. Its edge had become rotten. The Claimant brought a claim alleging a breach of PUWER 1998. The Judge found that an inspection carried out by the Council was adequate and that the ramp was not in such a state of disrepair as to put anyone on notice of something being wrong. The Judge however also found that the ramp was work equipment and that the Regulations therefore applied. He found a breach of Regualtion 5(1) (the obligation to make sure that work equipment was maintained). The Local Authority appealed on the grounds that the ramp was not work equipment for use at work and that the Regulations were not intended to impose strict liability for lack of maintenance in relation to something over which the employer had no real control.

The decision

Work equipment for which an employer is strictly liable must in some way have been selected by the employer for use by the employee before it can be work equipment for use at work under the Regulations. The Regulation covers equipment “provided for use or used by an employee”. If the employer has allowed the use by an employee of the employee’s own equipment, strict liability may attach. Provision or making available must include simple selection, ie a consenting to the employee using such equipment. The same principle must apply to equipment supplied by a third party. If the employer has allowed the use at work of equipment provided by a third party, again that may well have been sufficient for selection by the employer and strict liability may well be employed.

Different considerations would apply to something which had been installed on a permanent or long term basis and which might have many uses. Strict liability should only be imposed by clear language. For someone to have the obligation to maintain something, it would normally have to be within their power to be able to do so without obtaining someone else’s consent. The duty to maintain could not normally apply to something which was part of someone else’s property. It could not normally apply to something in relation to which access was limited, and in relation to which, if some maintenance was necessary, consent to carry out the work was necessary. Parliament would not have contemplated that either Regulation 4 or 5 should impose strict liability in respect of construction or maintenance of the Council in relation to this ramp. Regulations 4 and 5 contemplated some underlying relationship, from which it would be natural to contemplate some responsibility for construction or maintenance or at the least a right to construct or maintain, before the obligation to “ensure” suitability for performance or maintenance would apply. When all the factors were weighed up – who installed it originally; how permanent it was; what it was usually used for; who looked after it in the ordinary way; and how it came to be used by an employee of the Council – there was nothing which spelt out a right over or the beginnings of a responsibility for, the construction or maintenance of this ramp outside the Regulations. It had been argued that the ramp was moveable and that the Council chose to use the ramp and, in effect, selected it as work equipment. However, neither mobility nor choice provided a complete answer. If, when they inspected the ramp, the Council had noticed a lack of repair their common law duty would have meant they should have asked the NHS or the house owner to allow them to remove the ramp and to replace it with another. The fact that something used is moveable does not make it work equipment and, because an employer allows it to be used, it would not be natural to infer that the choice gave rise to an obligation to maintain it, which heretofore the employer had no right to do and would have no right to do thereafter. Each case would turn on its own facts. There had however to be at the very least factors from which it could be spelt out some right to carry out maintenance before it was right to impose strict liability for failure.

Appeal allowed.

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