PUWER 1998: must be power to maintain for liability to arise
The claimant, a home care worker, employed by the council, was injured while using a ramp at a service user’s home. The ramp had been manufactured, supplied and installed by the NHS long before the user had council care services.
The council tested the ramp’s stability from time to time with the so-called “wiggle” test. They found no defects. However, the edge of the ramp collapsed when the Claimant was wheeling the service user down it, due to a defect that could not have reasonably been found on inspection.
The critical question was whether the ramp was work equipment, as against the council employer. If it was, then there was a failure to maintain under Regulation 5(1) PUWER 98 and strict liability arose. The Judge at first instance found this was the case. The Court of Appeal disagreed.
The Court of Appeal agreed that the ramp was an “installation” in line with one of the definitions of Work Equipment under the 1998 Regulations.
Regulation 3(2) provides: “The requirements imposed by these regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work”.
So the question was whether the use of an occupier’s ramp at a private home could be truly said to be work equipment as against the council employer, even though another party, the NHS, had provided the equipment for use.
The most relevant case in point was PRP Architects -v- Reid (2007) ICR 78:
- This involved an employee who used a communal lift in a works building. When leaving work, her hand became jammed in the defective lift door. The question there was whether she could truly be said to be at work, having left work, and travelled several floors down in a lift used by other employees of other workforces in the whole building.
If she was, then, the lift, even though not owned by her employer, was work equipment, as above, “used by an employee of his at work” and Reg 5 applied. Defendant counsel in that case admitted that, if she were emerging from the lift to post a letter for her employer, then liability must attach. But they said her leaving for home took her outside “work” for PUWER purposes.
The Court of Appeal ruled that she could truly be said to be at work when leaving the premises in terms of the Health & Safety at Work Act. They found that there was a reasonable time and space connection with work at that point. The problem was, in that case, counsel for the claimant had advocated that the connection between work and any work equipment used in the course of the working day, could stretch to public transport vehicles when on work duties, and defects in all communal lifts in other buildings as against the employer back at the office in the example of a travelling salesman.
That raised the spectre of liability against the employer stretching well beyond the confines of the workplace. The Court of Appeal was obviously concerned to draw a line in this case. It did so by saying that in the above case of PRP v Reid the employer had a right to insist on repair of the lift “and installation” by virtue of their lease. So they had some control. Control was critical.
Control could be passive, in the sense of allowing an employee to select his own tools or permitting an employee to use a third party’s tools. In those instances, if the tools were defective and caused injury, even if the defect were latent and unknown to the employer, the court accepted that this passive control or selection would create liability against the employer.
However, in this case the employer had no control over the installation of the ramp and no responsibility for maintenance. It was largely used by people other than the carer (the service user’s family and other visitors). It was on the householder’s premises and was permanently installed there.
LJ Waller said: “There must, in my view, at the very least be factors from which can be spelt out some right (as there was in the case of Reid above) to carry out maintenance before it is right to impose strict liability for failure.” The employer’s periodical tests of the ramp were just appropriately discharging their common law duty of care to their employee through a system of inspection .
Smith -v- Northamptonshire County Council, 4 February 2008, [2008] EWCA SIF 181