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PUWER r.3(2) meaning of ‘for use at work’: Equipment must be incorporated into and adopted as part of employer’s undertaking: Smith v Northamptonshire County Council [2009] UKHL 27

Mrs Smith was employed by Northamptonshire as a carer.  Part of her duties involved collecting people from their homes and driving them to a council-run day centre.  She was responsible for transporting Mrs Cotter, a wheelchair user with serious disabilities.  Mrs Cotter’s house had a ramp which allowed her to get in and out of her house.  The ramp was installed by the local NHS Trust, but as part of their duties as employers of Mrs Smith under the manual handling regime, the Council had previously inspected the ramp.

The ramp, however, was defective, and Mrs Smith was injured when part of it collapsed underneath her.  It was a ‘latent defect’ that would not have been picked up on inspection.  The effective claim before the court was under the Provision and Use of Work Equipment Regulations 1998, r5 (failure to repair or maintain).

 

The issues which reached the House of Lords were whether the ramp fell within the definition of work equipment in r2(1), and whether, under r3(2), the ramp was equipment ‘provided for useor used by an employee at his work’.  The ramp was conceded to have been work equipment so the question was simply whether it was “provided for use or used by” by Mrs Smith at her work.

 

The House of Lords decided, by a bare majority, that it was not.  The test formulated by Lord Mance, with whom Lords Carswell and Neuberger agreed, was whether the employer had ‘incorporated and adopted’ the equipment into its undertaking.  Accordingly, this is the 3-2 ratio of the case and binding on courts hearing these cases in future.

 

In Lord Mance’s opinion, the time was ‘long-since past’ when legislation (especially that putting into effect European directives) was to be given literal effect.  The problem his Lordship appeared to have had in mind was that if the literal meaning of ‘for use or used … at work’ was followed, any equipment, including the examples of an escalator on the Underground or a chair in their Lordships’ committee-room, would be the responsibility of the employer.  Whilst “provided for use” suggested a nexus between the equipment and the Defendant employer, the further words “or used by” did not of themselves imply any connection or control with/by the Defendant.

 

In a search for some limit on what could properly be classified as equipment provided for use or used at work, his Lordship opted to consider the separate duties that the Regulations themselves establish.  He said that rr4, 5 and 6, which contemplate the employer selecting, maintaining and inspecting work equipment, and also create duties in relation to work equipment leaving the undertaking, ‘impose obligations which employers can only sensibly have been intended to perform or be responsible for in respect of equipment within the direct sphere of their undertaking or control’.

 

Lord Mance rejected Lord Hope’s more limited control test, under which the minimum level of control needed to make the employer liable would have been the power to direct the employee in how the equipment is used, or not to use it at all.  Any employer who had such control over the employee (for example a solicitor’s firm who asked their clerk to attend the hearing of the appeal) would thereby have been liable for the defective Underground escalator or the committee-room chair.  Lord Mance also pointed out that as the alleged breach that led to Mrs Smith’s injury was a defect in the ramp itself rather than the way in which she used the ramp or was trained to do so, it was of no assistance to rely on her employer’s control over Mrs Smith’s ‘movements or activities’.  He held that as the council neither owned, provided, nor possessed the ramp, and nor did they have a right without more to inspect it (even though they had in fact assessed it on the facts), it was ‘no more than part of the environment’, like the escalator or the chair.  Accordingly, the ramp was neither incorporated into nor adopted as part of the employer’s undertaking and neither was it under their control.  

 

The minority (Lord Hope and Baroness Hale) preferred the test based on a very limited form of control, and as noted above, control to any extent over how the equipment was used would do.  They used Reg.3(3)(b) as the source for the limitation on the duty.  That sub-paragraph is concerned with the extension of the Regulations (outside of just employer-employee) to apply to a person who has control to any extent over either the equipment or its manner of use.  Strictly speaking, what Lord Hope said on this point does have some force, which was that Regulation 3 alone determines to whom the Regulations apply, and the Regulations that follow contain the substantive duties themselves.  It is ironic, however, that the express reference to control in Reg. 3(3)(b) was not accepted by their Lordships as excluding a control test for Reg. 3(2).  It has been observed that the effect is to equate the position of the employer under Reg 3(2) with that of persons with no immediate relationship with the employee under Reg. 3(3)(b), which is perhaps an unusual approach to statutory interpretation.

 

As pointed out by Lord Neuberger (whose judgment neatly summarises the issue between Lords Mance and Hope) however, ‘the only sense in which the Council had control was in its ability to instruct Mrs Smith not to use the ramp, but that would mean that the lift, escalator, or train at the railway station would be work equipment “provided for use or used… at work”’ (para 87).

 

It is difficult not sympathise with the pithily expressed views of Baroness Hale, however, that the real objection on behalf of the Council was not that they had no choice in how Mrs Smith was to use the ramp, or whether to install their own, but ‘that they were not negligent because the ramp was not obviously defective’, and that such an objection clearly overlooks the strict liability regime imposed by PUWER.   After all, the Post Office had no way of knowing of or guarding against the defect in Mr Stark’s bicycle but were liable nevertheless: Stark v PO [2000] ICR 1013. 

 

It is perhaps worth suggesting that the Council would have had little reason to exercise any of this choice if a reasonable inspection would not have found the defect, but in deciding that only such equipment that is within the ‘direct sphere’ of the employer’s undertaking can attract the duties, notions of fault may well have played some (perhaps subconscious) part in deciding where the line must be drawn.

Ryan Amesbury