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Smith v Northamptonshire County Council, House of Lords, 20 May 2009

5 June 2009
The issues

PUWER – Provision and Use of Work Equipment Regulations 1998 – whether employer liable for defective work equipment where employer had not provided the equipment – control test.

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 Court of Appeal found for the Claimant on the basis that work equipment for which an employer was strictly liable must in some way have been selected by the employer for use by the employee before it could be work equipment for use at work under the regulations. This would have included equipment which the employer had knowingly allowed an employee to use, even if supplied by a third party. In effect the Court of Appeal came to the conclusion that the employer would only be liable if it had control. The Claimant appealed to the House of Lords.

The decision

Five separate Judgments were given by the House. Lords Carswell, Mance and Neuberger dismissed the Appeal. Lord Hope and Baroness Hale dissented. All the Judgments showed a significant concern as to the difficulties of limiting the scope of regulations which imposed after the decision in Stark v Post Office, strict liability on the employer for defective work equipment. Each also wrestled with the longstanding Public Policy issue of the tension between the protection of employees at work and health and safety concerns and, on the other hand, the financial and economic consequences on employers arising from the likelihood of increasing insurance premiums.

Of the three majority speeches Lord Carswell agreed with the approach taken by Lord Mance, but expressing it in terms of limiting the ambit of possible liability by resorting to the concept “of the undertaking and / or establishment” graphics the phrase used by the Work Equipment Directive but replaced in the regulations by the phrase “provided for use or used…at work”. On that basis he reserved his opinion as to whether the test would exclude the lift in PRP Architects v Reid. Applying that principle to the facts, Lord Carswell concluded that the ramp did not come within the respondents undertaking or establishment and the regulations did not therefore apply.

Lord Mance took the view that the test had to be defined by reference to a “nexis“, being some connection between the equipment and the employer’s undertaking. Such a nexis, in his view, was necessary for the interpretation of the regulations. He defined the test as being “whether the work equipment had been provided or used in circumstances in which was as between the employer and employee incorporated into and adopted as part of the employers business or other undertaking, whether as a result of being provided by the employer for use in it, or as a result of being provided by anyone else and being used by the employee in it with the employer’s consent and endorsement”. He also declined to express a view as to the correctness or otherwise of the decision in PRP Architects v Reid. In doing so he adopted and implied, in respect of Regulation 3(2), the reasoning of Lord Rodger in Spencer-Franks. Lord Neuberger noted the distinction between the approach of Lord Hope (concentrating on the control which the employer had over the employee’s use of the equipment) and the approach of Lord Mance, which focused on the control which the employer had over the equipment itself accepting that his knowledge and approval of the employee’s use was relevant. With considerable hesitation, Lord Neuberger agreed with Lord Mance.

Appeal dismissed.

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