This case provides an in depth analysis of the application of the Provision and Use of Work Equipment Regulations 1998. The decision moves away from the restrictive approach adopted in the English Court of Appeal case, Hammond v Commissioner of Police of the Metropolis and seems to point to a return to the expansive interpretation of the Regulations that had been adopted by the courts previously, as was envisaged when the Regulations were implemented to comply with the Council Directive 89/655/EEC.

BACKGROUND

The case involved an accident at work on 12 October 2003 where the appellant had been contracted by Kellog Brown and Root Ltd (KBR) to work on the Tartan Alpha Platform which was operated by Talisman Energy (UK) Ltd (Talisman). The closer on the door of the central control room was not working properly and the appellant was asked to inspect and repair it. 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 by backing off by half a turn the screw which held it to the door frame. This should not have disengaged the screw. In fact the screw pulled out and the arm struck the pursuer in the face. He lost four teeth which had to be replaced by implants.

The pursuer raised an action against KBR and Talisman in Aberdeen Sheriff Court claiming that both parties had breached their obligations under regulation 4 of the Provision and Use of Work Equipment Regulations 1998. The defenders took pleas to the relevancy on the ground that the door closer could not be work equipment within the meaning of the regulations. The Sheriff found that the door closer was ‘work equipment’ but that the employer (KBR) had no control over it and as such, the regulations did not impose responsibility upon it. However, he found that Talisman did have control. As such, he repelled Talisman’s plea to the relevancy and allowed the pursuer’s proof.

Both the pursuer and Talisman appealed to the Second Division of the Court of Session who took the view that the door closer was not “work equipment” or, even if it was, that the pursuer was not “using” it within the meaning of the regulations. They dismissed the pursuer’s appeal and allowed KBR’s appeal.

The pursuer subsequently appealed to the House of Lords who allowed his appeal. It was agreed by the defenders that if the pursuer was to succeed in his appeal then a proof was to be fixed against both defenders. The Lords focussed their attention on the application of the Regulations to the second defender, Talisman.

WORK EQUIPMENT?

The first issue in the case was whether the door closer was work equipment within the terms of regulation 2(1). It was unanimously agreed between the Lords that it did so. Lord Hoffmann stated that “everyone using the control room was using it for the purposes of their work. They used the door to enter or leave the control room. And in doing so, they used the closer. Its purpose was for use at work. Giving the definition its ordinary meaning, the closer was work equipment. The question is whether it can be excluded by some implied qualification.”

Although not averred by the defenders the lords dealt with the issue that the closer may have formed part of the premises upon which the work takes place. Lord Hoffmann stated that “a lot of such equipment is going to be bolted or otherwise attached to the platform, but I do not think that this prevents it from being work equipment if it is for use at work”. Lord Rodger of Earlsferry agreed and referred to the case of Beck v United Closures & Plastics PLC 2002 SLT 1299 to support his assertion that there is “nothing artificial in describing the door, including the closer, as an apparatus for use by employees at work”. He continued by saying he would “doubt whether it would be wise to draw too sharp a division between work equipment and fabric” of the structure. Lord Carswell felt that it would be preferable to leave discussion of where the boundary may lie to future cases.

HAMMOND SUPERCEDED

The lords referred to the case of Hammond v Commissioner of Police of the Metropolis [2004] ICR 1467 and in particular, the judgment of May LJ which was not followed. In that judgment May LJ found that a police van was work equipment for the police officer driving the vehicle but not for the mechanic repairing it. Lord Hoffmann was unwilling to accept that “something can be work equipment in relation to one person but not to another”. Lord Rodger of Earlsferry was of a similar opinion finding that “it would be difficult to carry out that kind of exercise if items could slip in and out of being work equipment, depending on what was being done with them at any given moment”.

Lord Hoffman felt that the pertinent question in Hammond was whether the injured party was a worker in the undertaking to which the work equipment had been supplied and not who the worker was. He states “when one is considering the persons to whom the equipment has been made available, the relevant unit is the undertaking and not the particular worker”.

As such, it is reasonable to infer that the decision in Hammond has now been superseded and can no longer be regarded as authority in this area of law.

USE?

Regulation 2 defines the meaning of ‘work equipment’ to be “ any machinery, appliance, apparatus, tool or installation for use at work” with the word ‘use’ meaning “any activity involving work equipment and includes starting, stopping programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning”. Lord Johnston in the Second Division of the Court of Session stated that by definition in seeking to remove the door closer mechanism, which is what the pursuer was doing at the time of the accident, he cannot be said to be using it for a purpose connected with work as undernoted by the definition of ‘use’. He is effecting an action of repair which is entirely removed from the normal working of the machine”. Lord Marnoch continued to state “I am of the opinion that the first defenders, as the appellant’s employers, were doing no more and no less than attempting to comply with reg 5(1), namely to ‘ensure work equipment is maintained in an efficient state, in efficient working order and in good repair”.

Lord Rodger of Earlsferry rejected the “idea that the term repairing in the definition of “use” in regulation 2(1) should be construed narrowly” and that distinctions between “routine, minor repairs and more serious repairs makes no sense from the standpoint of ensuring health and safety”. As such he found that in repairing the closer then the pursuer was using the door when the arm of the closer sprang out and injured him.



PROVIDED FOR USE?

The next question to be answered was whether the door closer fell within the ambit of Regulation 3(2). Lord Rodger of Earlsferry referred, in particular, to the phrase “provided for use”. He points out that “the regulation does not mention who provided the equipment for use and in particular does not mention who provided the equipment for use. In particular, it does not say that the equipment was provided by the employer.” He found that “the form of words is plainly designed to allow for the common situation in this country where contractors supply the workforce, or some part of the workforce, to work with equipment provided by the owner of the workplace”.

CONTROL?

Although, the issue of control was not raised as an issue in the pleadings Lord Rodger of Earlsferry does provide some comment. He stated that the second defender was in control of the control room door and its closer and therefore, by virtue of regulation 3(3)(b) they were responsible for ensuring the requirements of Part II of the Regulations were adhered to. Therefore, in terms of Regulation 4, work equipment controlled by the second defenders would have to be suitable in any respect in which it was reasonably foreseeable would affect the health of “any person, including the pursuer, even though he was employed by someone else”.

RESTRICTED TO EMPLOYEES?

It should be noted that the lords reserved their opinion on the parameters of the application of the Regulations. It had previously been found that the Workplace (Health, Safety and Welfare) Regulations 1992 (Donaldson v Hays Distribution Services Ltd 2005 CSIH 48; 2005 SC (Vol. 1) 523) could not be relied upon by members of the public. Further Lord Mance did not comment on whether he believed the Provision and Use of Work Equipment Regulations 1998 extended to members of the public. Their reluctance to ratify this stance may leave the door open for future challenges to this interpretation of the Regulations.