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Couzens v T McGee & Co Ltd, Court of Appeal, 19 February 2009

9 March 2009
The issues

Work Equipment – Provision and Use of Work Equipment Regulations 1998.

The facts

The Claimant suffered an accident on the 3rd May 2003 when the tipper lorry he was driving overturned as he was leaving the M1 motorway at junction 6. The vehicle overturned because it was going too fast. The Claimant said he was going too fast because he had been unable to move his right foot from the accelerator to the brake because a piece of angle iron used by him as a makeshift tool, which he kept in the side pocket of the drivers door, had caught in his trouser leg. The angle iron projected upwards beyond the edge of the side pocket. He blamed his employer because he said that they had not provided a suitable place in which he could keep this makeshift tool. At the time of the accident the Claimant had been employed by the Defendant for between 18 months to 2 years. Every day he moved several loads of spoil from Wembley to a dump not far from junction 6. He was given equipment to use including a shovel for cleaning out any spoil which remained in the truck after the bulk had been tipped out. The Claimant said that in addition to the shovel he needed a smaller sharper tool for other tasks such as scraping in the corners of the truck, and removing mud from the locking mechanism and from the tyres before driving on public roads, and from their boots before getting into the cab. For this he used a piece of angle iron. It was 16” – 18” long and was L-shaped. He kept it in the pocket of the drivers door because there was nowhere else to keep it. There was no tool box. He had been using the tool for a considerable time, although there was nothing in the evidence to say how long. Other drivers used other tools such as old paint scrapers or small trowels. These were also generally kept in the side pocket of the door. The Defendant’s Health and Safety Director conceded that many of the drivers used scrapers or trowels and that he was aware that they were kept in the door pocket. He said however that he had never seen a driver use a piece of angle iron. He also said he had no idea the Claimant did this or that he kept it in the door pocket. Had he known that the Claimant kept a piece of angle iron in the door pocket he would have stopped him as he would have regarded it as dangerous.

The Recorder found that the scrap metal was work equipment being used at work under Regulation 3(2) of the Provision and Use of Work Equipment Regulations 1998 but found, pursuant to Regulation 4, that it was not foreseeable that the Claimant would have used it and stored it as he did. He therefore found that there was no liability. He also found that there was no breach of Regulations 8 or 9 as there was nothing to suggest that the Claimant was not adequately trained to store items safely.

The Claimant Appealed.

The decision

Following the decision in Smith v Northamptonshire County Council, the employer must have a sufficient degree of control over the work equipment in order to justify the imposition of strict liability. Before he can have control, the employer must know that the work equipment is being used. If an item of equipment that had not been supplied by an employer was being used at work it would not be work equipment unless the employer expressly or impliedly permitted its use or was deemed to have permitted its use.

Express permission would be a matter of evidence. Implicit permission might be inferred from evidence that the Defendant was aware that the item was being used and did nothing to stop it. Deemed permission would be inferred where the employer ought to have realised that an item was being used but apparently did not and therefore did nothing to stop it. Applying that test to this case it was clear that although the Recorder did not formulate the test properly, he reached the right answer and the Appeal had to fail. If the Recorder had asked himself whether or not the Respondent had permitted the use of the angle iron or must be deemed to have done so, he would, on the limited evidence, have reached the conclusion that it had not. He would therefore have held that the angle iron was not work equipment to which the Regulations applied. He found as a fact that the Defendant did not know that the Claimant was using the angle iron or was transporting it in the door pocket. The Defendant therefore could not have been expressly or impliedly giving permission for its use. Had he gone on to ask whether the Defendant should be deemed to have given permission he must have held on the evidence that it had not. First, it was not clear for how long the Claimant had been using the angle iron. There was not any evidence as to whether the use had been open or concealed. The Recorder had found that the lorry inspections were adequate. On this evidence the Recorder would have been bound to hold that there had been no deemed permission. If there had been evidence of use openly for a significant time the Recorder could have found that a reasonable system of inspection would have discovered it and if it had not been discovered, the employer might well have been deemed to have permitted it. Since, on a true analysis of the meaning and scope of Regulation 3(2) the Regulations did not apply to the use of the angle iron, Regulation 4 could not apply and there was no duty to give instruction or training in respect of the use or storage of the angle iron.

Appeal dismissed.

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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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