Work equipment? The workplace? Strict liability?
The claimant was a caretaker at a primary school whose duties included cleaning the toilets in the nursery block. On this occasion, she found some toilet paper in the toilet bowl and decided to flush the toilet to clear it. She pressed the toilet handle and it snapped. The sharp edge penetrated the claimant’s hand.
It was agreed prior to the trial that no reasonable system of maintenance or inspection could have found the latent defect that had caused the handle to snap.
a) Was it work equipment?
The first allegation was a breach of regulation 4 (1) Provision & Use of Work Equipment Regulations 1998 on the basis that the toilet handle was work equipment and that there would be strict liability as per Stark -v- The Post Office (2000) ICR 1013; Ball -v- Street (March 2005 Law Bulletin) and so on.
The key question here was whether the toilet handle was a “tool of the trade” as per the test of definition of work equipment in: Hammond -v- Commissioner of Police of the Metropolis (2004) ICR 1467. It was argued for the claimant that she used the toilet handle to do her cleaning job and it was therefore a tool of the trade.
Counsel for the defendant argued that the claimant was not injured by the tools of her trade but rather the apparatus she was working upon, in line with the relevant distinction of what is not work equipment in Hammond, which made that case fail.
On this point, the Judge found: The toilet handle was not work equipment under the Provision & Use of Work Equipment Regulations 1998 and relied upon Hammond. The claimant was not injured by a mop or toilet brush but instead apparatus capable of use by all the people in the school. There were clear indications, he found, that the regulations do not extend to the object that the claimant was working upon and are limited to the tools provided for the job.
b) Was there a breach of the Workplace Regulations?
The second allegation was a breach of regulation 5 of The Workplace (Health, Safety & Welfare) Regulations 1992.
Counsel argued this provides in strict liability terms: Reg 5(1) – that the “workplace and the equipment, devices and systems to which this regulation applies shall be maintained in an efficient state, in efficient working order and in good repair”. It should not matter, in the same principle as Stark -v- Post Office, whether the defect was “reasonably discernible”.
To succeed, the claimant had to establish that the toilet could be deemed to be “equipment, devices and systems” to which the regulations apply.
Reg 5 (3) (a) says that “equipment, devices and systems to which this Regulation applies are equipment and devices a fault in which is liable to cause failure to comply with any of these Regulations.”
Counsel referred the Judge to the case of Lewis -v- Avidan Ltd (2005) EWCA Civ 670. In this case the claimant did not succeed as the faulty pipe, which caused the presence of water on the floor upon which the claimant slipped, was held not part of the workplace in its own right.
Nor – in Lewis –if the pipe was “equipment” under Reg 5(1) did its fault cause any breach of the Workplace Regs under Reg 5(3).
No breach of reg 12(3) Workplace Regs could be shown as detecting the broken pipe overnight and dealing with the leak was not reasonably practicable.
No breach of strict liability Reg 12(1) was accepted by the court as they found the floor itself was not defective in that its condition was sound, albeit with a temporary flooding!
So no breach of any other regulation could be read into the Workplace Reg 5(3) and he failed.
In this case the toilet did not form part of the workplace. The workplace is the cubicle, not the toilet itself, as that was the open space in which the claimant worked.
The way counsel got round this was to say a breach of regulation 20 of the Workplace (Health, Safety & Welfare) Regulations 1992 to provide suitable and sufficient sanitary appliances should be read as a failure to comply with Regulation 5.
The Judge found
That the toilet formed part of the Workplace Regulations through the words in regulation 5 (1): “equipment devices and systems” and the supplementary definition in Reg 5 (3) (a) as above.
The Judge found that a failure to comply with regulation 20, which deals with sanitary conveniences and more particularly the provision of suitable and sufficient sanitary appliances, could be read as a breach of Regulation 5, and in particular Reg 5(3) (a) above.
If the claimant could prove that the fault in the toilet is liable to result in a failure to comply with regulation 20(1), the case succeeded under Regulation 5 (1) and, if Regulation 5 (1) applies, it follows that liability is absolute. The claimant succeeded in her case on a breach of Regulation 5 (1) of the Workplace (Health, Safety & Welfare) Regulations 1992.
Counsel for the defendant said that the Judge’s interpretation was erroneous, wide and a mockery of the regulations and argued that the judgment rendered the specific Workplace Regulations (eg Regulation 20 for sanitary conveniences as opposed to the catch all Regulation 5) obsolete.
Leave to appeal to the High Court was granted and is to be lodged at Court within 28 days: no appeal yet received at time of writing with two days to go.
Carr -v- Gateshead Metropolitan B/C, DJ Dias. 9 November 2005, Newcastle upon Tyne
Counsel could not plead a breach of Reg 20 as a stand-alone allegation because it is not strict liability – it had to be incorporated into Reg 5 to win.
There is a detailed article in September 2005 considering all this and similar cases in the light of Lewis -v- Avidan. He confirms LJ May in Lewis -v- Avidan took the same approach as above, i.e. to succeed on the strict liability of Reg 5(1) you had to show the defect was a breach of the “equipment, devices and systems” and a definition of what was equipment etc had to come from somewhere else within the Regs.