We lose case of Smith in the House of Lords: PUWER 1998 | Thompsons Solicitors

HIGHER COURTS

This case was about the Provision and Use of Work Equipment Regulations 1998 (PUWER 1998). The main question was when a duty arises between an employer and employee if an employee is injured by work equipment.

The majority of the Lords read into the regulations a need to show some element of control by the employer over the work equipment that has caused the injury. Even those who dissented in the claimant's favour felt there was a need to show the employer's knowledge or control of the task that gives rise to injury.

The upshot is that we have lost the argument that there is no word "control" in the relevant regulations. Our first point that, whenever an employee is injured by work equipment in the course of his work, then on a literal reading of the regulations he has a claim against his employer, was rejected.

That is particularly important for employees injured using work equipment on the premises of an uninsured person, who look to their employer for compensation.

The Facts

The claimant worked for the council as a carer. Part of her job was to pick up people who needed to be driven from their homes to the council day centre. She was picking up a woman who used a wheelchair.

To get her out of her house she had to wheel her down a wooden ramp that had been put in ten years earlier by the NHS. Part of the ramp crumbled beneath her foot causing the carer to fall over.

Whatever was wrong with the ramp could not have been spotted by a reasonably careful inspection - like Mr Stark's bicycle, this was a "latent" defect.

The Law

All parties agreed that the ramp was work equipment. Since the case of Spencer-Franks a very wide definition has been confirmed to cover work equipment. Work equipment is:

Regulation 2.1 PUWER 1998: "Any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)".

In Spencer-Franks the Court clarified that any apparatus (etc) that performs a "useful practical function in the employer's undertaking" is work equipment.

All parties here agreed that the ramp served such a purpose.

But was there any obligation between employer and employee for the defect in the ramp that had caused this injury?

Regulation 3(ii) PUWER 1998: "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".

On a literal interpretation, these regulations should apply between employer-employee. The ramp was provided for use or used by an employee of his at work. However, the House of Lords became very exercised by the usual extreme examples of where such an interpretation could lead them.

An example to hand that bothered them was that of a solicitor who falls through a chair in the House of Lords while taking a note of the case. Should that solicitor have a case against their employer back at the office for work equipment used by them in the House of Lords?

It was due to examples like this that the Lords saw fit to incorporate a test of control into this area of law when the word simply does not exist in the regulations.

Lord Mance's definition of when equipment becomes subject to PUWER 1998 obligations is when it is "incorporated into and adopted as part of the employer's business, 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".

That is probably the definitive new test for these cases.

The problem with this definition is that, on the facts of the case, it could be said the employer actually had adopted the ramp as a useful part of its own business. They were happy it served a function that helped them do the job: without it, the carer could not have taken this lady from the house to the day centre.

The council knew about it. The ramp was even tested by them from time to time and there was guidance to employees to inspect it regularly. It was this involvement that attracted the dissenting Lords Hope and Hale to their view that the employer had assumed some form of control over the work.

However, Lord Mance said that the council's ability to refuse to send its employees to collect this lady or even to buy and make available another ramp did not show any form of control over the actual ramp - the work equipment - which caused the injury.

It showed control over the work. Lord Neuburger, who in effect decided between the two different viewpoints, was attracted to this difference.

The employer had to have control over the equipment itself.

He said: "The council had no control over the ramp; what was done with it and to it was not a matter for the council at all. The council had no involvement in the way it was used or the management or supervision of its use. The only thing the council could do was to forbid the claimant from using it."

For this reason, Lord Neuburger, who had read all the judgments and summarises them in his own, came down against the claimant in the decisive judgment.

From now on the key in these cases will be to show that the employer endorses and has control over the work equipment which causes injury.

Other cases

None of this should detract from the other ways to win similar though not identical cases.

Had the ramp broken at the day centre, even if the defect were not reasonably discoverable then that would be a simple PUWER claim against the Council along the lines of Stark v Post Office.

In the example of the chair in the House of Lords, a claim would stand against the House of Lords under PUWER 1998 under the separate Regulation 3(iii) for non -employers who have control over work equipment. That would even kick in as a strict liability for a latent defect not apparent on reasonable inspection (see Ball -v- Street )

An employee who visits a premises to do a job and does not have adequate equipment to do a job , such as a ladder, supplied by his employer, and who falls to injury because a defective ladder is given by a third party should still have a claim against her employer for failure to supply suitable work equipment under PUWER 1998.

As noted by the Lords, there is always the possibility of allegations for failure to conduct a proper risk assessment under MHSWR 1999 and common law duties to remove services or take action should the hazard be identified before the accident.

Smith -v- Northamptonshire County Council [2009] UKHL27