Date:  1 June 2009

EMPLOYERS -  PUWER OR NOT SO PUWER THAT IS THE QUESTION?

As employers or controllers of work equipment, this very topical area of case law involves interpretation of the Provision and Use of Work Equipment Regulations 1998 (“PUWER”).  Following the House of Lords decision in the case of  Smith v. Northamptonshire County Council [2009] UKHL 27,  I thought it worthwhile looking briefly at some of the well known decisions impacting on employers which have a wide application and will inevitably effect those who employ people who use work equipment, extending to those who own buildings and/or employers of independent contractors working for them.

Robb v. Salamis ( M & I) Limited [2006[ UKHL56: 

What is work equipment?

In this case a suspended ladder providing access to the top tier bunk bed on an offshore platform was deemed to be work equipment.  As such, it was the responsibility of the employer to ensure that the ladders were constructed or adapted to be suitable for purpose and used only under conditions for which is suitable (Regulations 4(1) and 4(3)).  The onus remains on the employer to take into account an employee’s carelessness which is reasonably foreseeable when selecting appropriate equipment.

PRP Architects v. Precious Reid [2006] EWCA Civ 1119: 

Was the equipment being used at work?

The claimant’s hand was injured when it became trapped in a lift door in the common parts of a building where she worked.  It was conceded that the lift was work equipment in this case.  The point in issue was whether or not the lift was being “used at work” i.e. whether the employee was within the course of employment at the time.  She was and liability was established.  The employer in this case had limited control of the workplace equipment (in this case a contractual right to use the lift) but was still found to be liable.

Spencer-Franks v. Kellogg Brown and Root Limited and Others [2008] UKHL46:

What is the purpose of the work equipment? 

Another case looking at the definition of work equipment broadening the approach to that adopted in Robb v. Salamis (above).  This is important because the employer and those in control of such equipment are strictly liable if it is defective.  The scope of this definition was the subject of an attempt to limit in the case of Hammond v. The Commissioner for the Metropolis and the Metropolitan Police Authority [2004] EWCA Civ830 when Lord Justice May tried to limit the scope of the definition to “tools of the trade” even though this was contrary to the definition contained with Regulation 2(1) which includes “apparatus” and “installations used at work”.  In this case Lord Hoffman cut through the apparent complexity of defining “work equipment” by simply asking in respect of the purpose of any equipment

“What is it for?  If it is for use at work, then it is work equipment.”

The end result was that the earlier test in Hammond was rejected and the position following Spencer-Franks was rendered as being worse for employers where equipment causes injury.  What was clear from this case is that the Regulations were said to have been designed to prevent injuries happening in the first place.  If that means strict liability where injury takes place, then that would be considered to be a secondary feature.

Smith v. Northamptonshire County Council [2009] UKHL27:

Was the equipment for use or used at work?

The claimant was an employee of the defendant and her duties included visiting the home of a wheelchair-bound service-user to collect her and take her by bus to a day centre.  In order to do this, she had to wheel the service-user down a wooden ramp situated at the back of the house outside the patio doors.  During the course of doing this, the edge of the ramp crumbled, causing the claimant to stumble and sustain injury.  The council did not own the ramp but they had undertaken inspections of it from time to time – it was not in an obvious state of disrepair.   Following this case, a two-stage approach is required:

• Stage one:  Was the ramp “work equipment” for the purposes of Regulations 2 and 5 of the 1998 Regulations and, if so, what was the proper construction of the words “for use at work”?  In fact the decision in Spencer-Franks v. Kellogg Brown and Root Limited and Others [2008] UKHL46 seems to dispose of these issues. In the current case, the council conceded these points prior to the appeal hearing.  Nothing that was said in Spencer-Franks has been disturbed as a result of this decision and the obligations upon employers in relation to work equipment remain onerous.  The courts are likely to take a tough line in that as soon as the Regulations kick in then the scope for liability arguments will narrow down considerably.

• Stage 2:  This involves an analysis of the question of control. What is the proper construction of “for use or used….at work” as found in Regulation 3(2) of the Regulations?  This depends on the nature of control which the employer has over the work equipment.  Control over the use of the equipment is not enough, control over the equipment must be demonstrated and  the fact that an employer has assessed and inspected the piece of equipment (as had occurred in this case) does not demonstrate such control. 

 Comment: 

It is difficult to see how, on the facts of this case, the claimant did not meet the above test.  Indeed if one looks at the decision in PRP Architects v. Precious Reid (above), their control was similarly limited.  The fact that this ramp was situated in someone else’s garden could well be the distinction to be drawn – how does an employer control and/or regulate equipment which is not owned by the employer and which, in this case, had been in situ and exposed to the elements for some 10 years and was not in an obvious state of disrepair?

It occurs to me that there are likely to be other examples illustrating the difficulties of statutory interpretation in this area – watch this space!

Denise Brosnan