The claimant, Mrs Smith, an employee of the Council, was injured while wheeling an elderly client out of her house to take her on a bus to a day centre. The client's wheelchair needed a ramp to leave the house; the ramp had been provided by the NHS (not the Council) some years ago. A defect in the ramp caused Mrs Smith's injury. There was no negligence by the Council. But there was a civil action for breach of the 1998 Regs, in particular reg 5 which required "work equipment" to be "in good repair", if the circumstances of the incident fell within reg 3(2). This came down to two questions discussed in the lower courts: (1) was the ramp "work equipment"? (2) was it "provided for use or used by an employee at his work"?
(1) In the House of Lords it was conceded, and agreed by all their Lordships, that the ramp was indeed "work equipment". (I assume, from the comment by Lord Hope at [10] that it "was left outside and was used very frequently", that it was a movable object, and not a "fixture"- this might have raised some questions about whether a "fixture" can be "work equipment", some of which were discussed in the previous decision of the House in Spencer-Franks v Kellogg Brown and Root Ltd [2008] UKHL 46, at [12]-[15]). But Lord Hope at [21]-[22] offers some helpful comments on the issue anyway (eg that the object must be intended to be used by workers and not just by family members.)
(2) But was the ramp covered by the regulations, given that it was not "provided" by the Council? (It was, however, inspected by Council employees and tested by them occasionally.) All members of the House accepted that the words "used by" the employee would if read literally have meant that the ramp was included, since every time Mrs Smith fetched the client she in fact used the ramp. But all said that there needed to be some limitation on the full breadth of these words, as otherwise an employer could be held responsible for the condition of some item which an employee, sent off-site, in fact used despite the employer not even being aware of its existence, and having no influence over its condition. (Their Lordships seem to have been very taken by an example apparently offered by counsel, of a solicitor being held responsible if a clerk he sent to observe an appeal being heard in the House of Lords were to be injured by a defective chair in the Committee Room! See eg [24].)
The majority view was that adopted by Lord Mance, agreed with in separate judgments by Lord Carswell and Lord Neuberger. At [65] his Lordship holds that the equipment must have been somehow "incorporated into and adopted as part of the employer's business or other undertaking", either being supplied by the employer or "provided by anyone else and being used by the employee in it with the employer's consent and endorsement". In using this language his Lordship was it seems adopting the terminology of the European Directive 89/655/EEC art 3(1), which the regulations were said to have been implementing-see [62]. In this case the ramp was not part of the Council's undertaking- they did not own it, had no right to repair it without more, and the mere fact that they inspected it only meant that they were careful- [67]-[70].
Lord Hope, on the other hand (supported by Baroness Hale), preferred a different test. His Lordship argued that the "limiting" factor on "mere use" should be related to the question of "control" exercised by the employer over the item. In adopting this term he referred to the test of "control" to be found in reg 3(3), which applied to persons other than employers, but said that the concept was a helpful one for the whole regulation- [27]. In this case the Council had "control" in that they knew the ramp was being used, their officers had tested it occasionally, and they knew that it was needed for the job to be done. Hence the Council should have been held liable for defects- [30].
I have said there are two tests. But in fact the line between the two tests is not very clear, and even their proponents say that the case could have been decided the same way on both tests- see Lord Hope at the end of [28], Lord Mance's reference to "control" in [70], and Lord Neuberger's comment at [81] that "each formulation could be invoked to support the opposite result"! In the end Lord Neuberger says that the difference between the two tests comes down to Lord Hope's focussing on control over the employee, whereas Lord Mances' emphasises control over the equipment- see [83].
Some things are clear from the judgment. Equipment about which the employer has no knowledge, nor could be expected to know, will not fall within the scope of the legislation- see eg [23] where Lord Hope adopts comments from the Court of Appeal in another case. But determining where the line should be drawn in other situations will require consideration of the extent of "incorporation" or "control".
Regards
Neil Foster
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931