Local Government - June 2009
Smith v Northamptonshire County Council
House of Lords (Lords Hope, Carswell,
Mance, & Neuberger and Baroness Hale). 4 February
2009 UK HL 27
Executive summary
The
House of Lords’ judgment in Smith v Northamptonshire County
Council, handed down on 20 May 2009 is the latest in a line of
recent work equipment cases from both the Court of Appeal, and
particularly the House of Lords following the recent decision in
Spencer – Franks v Kellogg Brown & Root Ltd (2008 UK HL
46). The Smith decision once again highlights the onerous
nature of the strict liability provisions under the Provision &
Use of Work Equipment Regulations 1998 and the balance to be struck
between protecting individual employees, and fairness to
employers.
Facts
Mrs Smith, the
Appellant in this action, was employed by the Respondent Council as
a driver and carer, with one of her duties being to collect and
transport patients from their homes to a Day Centre.
The regular collection of one such patient required Mrs Smith to
use a wooden ramp which had been installed at the patient’s home by
the NHS 10 years earlier. As Mrs Smith needed to use the ramp
on each occasion, the Council had inspected and assessed it from
time to time. On the day of the accident, the ramp crumbled
due to a latent defect, causing the Appellant to stumble and
sustain injury. Mrs Smith brought proceedings against her
employer for failing to ensure that the ramp was maintained in good
repair.
At first instance, Judge Metcalfe held that
the 1998 Regulations applied as the ramp was work equipment, and it
was being used at work by Mrs Smith. Consequently, the
Regulations were deemed to apply, invoking strict liability against
the Council. The Court of Appeal subsequently allowed
the Appeal on the basis that the ramp was not work equipment,
relying for this finding on the facts that the ramp had not been
installed by the Council, and that they had no ability to maintain
it. Mrs Smith appealed to the House of Lords.
The relevant legislation is the Provision of
Use & Work Equipment Regulations 1998:
“Work Equipment means any machinery,
appliance, apparatus, tool or installation for use at work ,
whether exclusively or not”.
“Use” in relation to work equipment
means any activity involving work equipment and includes starting,
stopping, programming, setting, transporting, repairing, modifying,
maintaining, servicing and cleaning.
“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 at his work”.
“Every employer shall ensure that work
equipment is maintained in an efficient state, in efficient working
order and in good repair”.
Decision
During the
course of the appeal, Counsel for the Respondent conceded that the
ramp was work equipment as defined by Regulation 2 (1), an issue on
which Lord Carswell felt “there might have been room for
debate”. Further, it was agreed that the latent defect
rendered the ramp unsuitable and consequently, if the Regulations
applied, then the Respondent would be fixed with strict
liability. The Law Lords therefore had to decide whether the
Regulations applied, which in turn required them to decide whether
the ramp was provided for use or used by Mrs Smith at
work.
Lords Carswell , Mance and Neuberger dismissed
the Appeal, with Lord Hope and Baroness Hale dissenting. Lord
Neuberger’s comment that he agreed with his colleagues only with
considerable hesitation and contrary to his initial impression,
shows just how close the decision was, and highlights the
difficulties of interpreting legislation.
Notwithstanding the final decision, all the
Law Lords agreed that the strict liability provisions of the 1998
Regulations could and should not apply universally to always
protect employees at the expense of their employers. As Lord
Hope opined, “It is hard to see where the justification lies for
imposing strict liability on an employer for something that he has
not provided or authorised for use at work, about which he does not
know and which he cannot reasonably be expected to know and is not
able to do anything about”. However it is how
their Lordships sought to limit the ambit of the regulations
through the element of ‘control’ that their differences of opinion
appear.
Lord Hope felt that the necessary aspect of
‘control’ came from employers and others providing the equipment or
from the use of the equipment with the employer’s consent,
endorsement or authorisation. As Mrs Smith used the ramp with
the Council’s knowledge and approval, he felt that there was
sufficient control to render them liable under the
Regulations. Baroness Hale also felt that the words “use at
work” were restricted to use authorised by an employer for the
purpose of the employee’s employment . In her opinion,
control was enough if the employer could tell the employee not to
use it or how to use it. Consequently she also found the
Council liable. Lord Carswell’s test required the item to
come within the Council’s “establishment or undertaking” which he
felt the ramp did not on this occasion. Lord Mance was less
inclined to use the word ‘control’ but required some nexus (beyond
the mere fact of use) between the equipment and the employer’s
undertaking before that employer fell under the ambit of the
Regulations, i.e. the equipment being incorporated and adopted in
to the employer’s undertaking either as having been provided by the
employer or the employer consenting to and endorsing its use.
He did not feel that the ramp had been incorporated here as the
Council did not provide or have any responsibility over it.
In the lead judgment, Lord Neuberger neatly
summarised the different approaches of the various Law Lords as
follows:
“Lord Hope’s approach appears to me to
concentrate on the control which the employer has over the
employee’s use of the equipment although the degree to which he can
inspect the equipment is also relevant. Lord Mance seems to
me to focus more on the control which the employer has over the
equipment itself, although his knowledge and approval of the
employee’s use is relevant. When referring to control and
what follows, I shall use it in the sense of control over the
equipment”.
He found support for his definition of control
from subsequent parts of the Regulations. In his
opinion, the Council had no control over the ramp, what was done
with it and to it. The only control which the Council could
exercise was to forbid Mrs Smith from using it at all (i.e. the
control was only over the use of the equipment). Neither Lord
Neuberger nor Lord Mance were prepared to fine the requisite
control simply as a result of the Council having behaved
responsibly in checking the ramp, and risk assessing the
Appellant’s tasks. Something more than this was
required, one suggestion being that the control could have been
introduced if the Council had repaired or replaced the ramp.
Comment or Advice
The
decision illustrates a conflict in public policy between the views
of, on the one hand, Lord Hope and Baroness Hale that the purpose
of the Regulations is to promote Health & Safety, even on
occasions where employers are powerless, and the view expressed by
the majority that any strict liability of employers must be
controlled.
Clearly this is a welcome decision for
both employers and their insurers, by limiting the ambit of the
strict liability provisions under the 1998 Regulations.
It is clear following this decision that for the Regulations to
apply, a judge must be satisfied that there is:
- An item of work equipment (having
some practical, useful function, as decided in
Spencer-Franks). Interestingly Lord Carswell felt this
excluded items for storage or decoration, or the floors, walls and
ceilings of a building,
and
- It was provided for use or was used
by the claimant at work – requiring an employer to have control
over the equipment itself, rather than just control over the user
of the equipment.
Such a test should lead to common
sense decisions when assessing culpability in respect of work
equipment. Thus, in Lord Neuberger’s example of an accountant
who is injured by a defective kettle at his client’s offices, the
test will rightly fix the client’s firm with liability as opposed
to the employer, whereas the position would not be so clear-cut on
Lord Hope’s test. This decision is of particular
significance in relation to work equipment provided by others, and
used by employees away from their employer’s premises, where it
should now be easier to mount a defence to allegations under the
1998 Regulations. One assumes that in light of Smith, claims
arising from factual scenarios such as presented in PRP Architects
v Reid (2007 ICR 78) (where a communal lift was held to be work
equipment) are more likely now to fail against employers under
these Regulations.
The Smith decision provides some
welcome clarity and limitation on the imposition of strict
liability under the Work Equipment Regulations. However it
remains difficult to second guess on each factual case whether the
court will find that an employer’s obligations, involvement and
power to intervene over work equipment will constitute appropriate
control for the 1998 Regulations to apply. This is unlikely
to be the last piece of litigation on the interpretation of this
particular statute.
For further information about
Weightmans or to discuss any of the issues in this update please
contact Peter Forshaw at Weightmans on 0151 242 7935 or at peter.forshaw@weightmans.com
Weightmans LLP