STATUTORY DUTY—EMPLOYER’S BREACH OF DUTY TO WORKMAN —EMPLOYER’S LIABILITY

House of Lords

Lord Hoffmann, Lord Rodger, Lord Carswell, Lord Mance and Lord Neuberger

2 July 2008

For the purposes of identifying something as work equipment as defined by the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306), (the equipment regulations), one should consider whether it is for use, in the sense that it performs a useful, practical function within and in relation to the purposes of the business.

Angus Stewart QC and Jan McCall (instructed by Drummond Miller LLP) for the appellant.

Colin Macaulay QC and Roderick Dunlop (instructed by HBM Sayers) for the respondents.

In 2003, the appellant was employed as a mechanical technician by the first respondent (KBR). KBR contracted to supply workers to operate the Tartan Alpha platform in the Scottish sector of the North Sea, which was operated by the second respondent, Talisman Energy (UK) Ltd (Talisman). The appellant was one of the workers which KBR supplied to work on the platform.

In October 2003, the closer on the door of the central control room was not working properly, and the appellant was asked to inspect and repair it. According to the appellant, the screw in the linkage arm was disengaged in circumstances in which it should not have been, and he suffered injury as a result. He brought proceedings in Scotland, claiming that the respondents had each been in breach of its obligations under the equipment regulations, which replaced the Provision and Use of Work Equipment Regulations (SI 1992/2932) (the regulations), both having been passed in order to implement Council Directive (EEC) 89/655 (the equipment directive). He contended that the door closer was “work equipment” for the purposes of reg 2(1) of the equipment regulations, being a piece of machinery or apparatus for use at work. He further contended that it was not suitable for use in a way which would foreseeably affect his safety; it was attached in such a way that the arm would fly off unexpectedly and hit one in the face.

The sheriff sustained the plea of KBR on the ground that although the door closer was “work equipment”, the employer had no control over it and the regulations therefore did not impose responsibility upon it. On the other hand, Talisman, the operator, did have control. Both the appellant and Talisman appealed.

The Court of Session held that the door closer was not “work equipment”, and even if it was, the appellant had not been “using” it within the meaning of the regulations. The Court of Session accordingly dismissed the appellant’s appeal. He appealed to the House of Lords. Counsel for the respondents agreed that if Talisman was liable to the appellant, KBR would be also.

LORD HOFFMANN:
His lordship considered first the question of whether or not the door closer was work equipment. The equipment regulations were intended to implement the equipment directive, although the provisions of regs 3(3) to (5), which placed duties upon non-employers having control of work equipment, went beyond what the directive required. The definition of work equipment in the directive was “any machine, apparatus, tool or installation used at work.” The definition in the equipment regulations used the words “for use at work”.

The change was made to forestall literalist arguments that a defective machine which caused injury while it was not being used was not work equipment. The domestic definition required one to ascertain the purpose of the apparatus etc. What was it for? If it was for use at work, then it was work equipment.

If one took that simple approach, then the answer was clear. 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 was whether or not it could be excluded by some implied qualification.

One possibility was that the equipment regulations impliedly excluded apparatus which formed part of the premises upon which the work took place. In the case of ordinary work premises on land, that might be a good argument. But it did not apply to equipment which was attached to an offshore platform.

The equipment regulations were intended to apply to all equipment on an offshore installation. In the nature of things, a lot of such equipment was going to be bolted or otherwise attached to the platform, but that did not prevent it from being work equipment if it was for use at work. The door was accordingly work equipment for which Talisman was liable.

LORD RODGER:
The machinery and apparatus etc of an undertaking were there to perform a useful, practical function in relation to the purposes of that undertaking. Depending on the nature of its business, the undertaking might, for instance, have lathes for cutting metal. Such equipment would serve a useful function in the employer’s business. So it was “for use at work” and fell within the definition of “work equipment”.

By contrast, a business would not have machinery etc simply so that it could be programmed, transported, repaired or cleaned: if that were all that it was there for, the machinery would serve no useful, practical purpose in the undertaking. Rather, programming, transporting, repairing and cleaning were all operations which might have to be carried out on something that was “work equipment” because it served some practical purpose, was “for use at work”. Those operations were included within the definition of “use” in relation to work equipment in order to ensure that the equipment posed no threat to health and safety when any of them was being carried out.

Accordingly, his lordship would reject Lord Justice May’s view that the equipment regulations “do not extend to that which the employee is working on as distinct from the equipment which he is using to undertake his work“: Hammond v Commissioner of Police of the Metropolis [2004] ICR 1467, [2004] EWCA Civ 830.

The appeal would therefore be allowed. Lord Carswell, Lord Mance and Lord Neuberger delivered concurring opinions.