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Spencer-Franks v Kellog Brown & Root Ltd, House of Lords, 2 July 2008

31 July 2008
The issues

Employers Liability – Provision and Use of Work Equipment Regulations 1998 – whether a door closer on an offshore oil platform was work equipment within the meaning of the Provision and Use of Work Equipment Regulations 1998 – Hammond v Commissioner of Police of the Metropolis – PRP Architects v Reid.

The facts

The Pursuer was employed as a mechanical technician by the Defendant in 2003. He was one of the workers supplied by the Defendant to operate the Tartan Alpha platform in the Scottish section of the North Sea. The platform was operated by Talisman Energy (UK) Ltd. On the 12th October 2003 the closer on the door of the central control room was not working properly and the Pursuer was asked to inspect and repair it. According to the Pursuer, he decided to remove the closer and take it to the workshop for repair. Before doing so, he tried to assess the level of tension in the linkage arm which attached the spring mechanism to the door frame. As he did so, a screw disengaged, pulled out and the arm struck the Pursuer in the face causing him to lose 4 teeth. He brought an action against the Defendant alleging breach of its obligation under the Provision and Use of Work Equipment Regulations 1998. The second division of the Court of Session took the view that the door closer was not work equipment within the meaning of the Regulations or, if it was, that the Pursuer was not “using” it within the meaning of the Regulations.

The Pursuer appealed to the House of Lords.

The decision

Lord Rodger, with whom Lords Neuberger and Mance agreed, noted that the machinery and apparatus of an undertaking were there to perform a useful practical function in relation to the purposes of that undertaking and might include “for use of work”, for example

“Clocks to let the employees know the time, radios for them to listen to music while they work, kettles for them to make tea or coffee and water coolers at which they can drink and gossip. All these will constitute work equipment. As indeed, will, so screwdrivers or radios of their own which employees are allowed to bring in and use at work.”

If the walls or floors of a factory were not to be regarded as work equipment, they did not become work equipment simply because they fell into disrepair and an employee had to repair them. Equally, if a drill was an item of work equipment, it did not cease to be so merely because it broke down and someone was repairing it. In Hammond v The Commissioner of the Police of the Metropolis the Court of Appeal had taken the view that the 1998 Regulations drew a distinction between “that which the employee is working on as distinct from the equipment which he is using to undertake his work”. (In that case the Claimant was a mechanic employed by the Commission of Police who was working on the wheel of a police dog van when the shearing of a bolt caused him to suffer injury. The Court of Appeal found that the Regulations were concerned with what might loosely be described as the tools of the trade provided by an employer to an employee to enable the employee to carry out the work and that therefore a van might well be work equipment for a police man driving it but not of the police mechanic repairing it.)

This was the wrong approach. If the door closer was not work equipment when it was operating to close the control room door, it did not suddenly become work equipment when it was being repaired. Conversely, if it was work equipment when operating to close the door, it did not cease to be work equipment when it broke down.

The House had to decide whether, when performing its normal function, the door closer was to be regarded as work equipment in terms of Regulation 2(1). It might however be better not to consider the closer in isolation. An employee who repaired a faulty switch or plug on a drill was not simply repairing the switch or plug. He was repairing the drill which was not working properly. Similarly, the Pursuer was not simply repairing the closer. He was repairing the control room door. The issue therefore was, whether, in operation, the control room door was work equipment for the purposes of the 1998 Regulations. “To some extent this is a matter of impression….” (Lord Rodger). Like Lord Hoffman however, Lord Rodger agreed that the door, which was being used all the time by employees going in and out of the control room, was work equipment. There was nothing artificial in describing the door as an apparatus for use by employees at work. (Lord Hoffman noted that, in the case of equipment on an off shore installation which, in the nature of things, was likely to be bolted or otherwise attached to the platform, this did not prevent it from being work equipment if it was for use at work. He noted that the same was true of the lift, which, in his view, was rightly held to be work equipment in PRP Architects v Reid.

Support for the conclusion that the door was work equipment was found in Beck v United Closures and Plastics Plc where Lord McKewen held that two heavy doors, which employees had to use many times a day to enter a room to gain access to machinery, constituted work equipment. A contrary view might be that it was part of the fabric or the structure. Lord Rodger doubted that it was wise to draw too sharp a division between work equipment and fabric. This comment was echoed by Lord Carswell who agreed and added that he would prefer to leave to a future case, decisions on where the boundary might lie.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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