Smith v Northamptonshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Richards,Lord Justice Rimer |
| Judgment Date | 11 March 2008 |
| Neutral Citation | [2008] EWCA Civ 181 |
| Date | 11 March 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2007/0710 |
[2008] EWCA Civ 181
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
His Honour Judge Metcalf
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of The Court of Appeal, Civil Division
Lord Justice Richards and
Lord Justice Rimer
Case No: B3/2007/0710
5NG13468
Mr Anthony Edward Berrisford (instructed by Messrs Thompsons) for the Respondent
Mr Hugh Preston (instructed by Messrs Shoosmiths) for the Appellant
Approved Judgment
Hearing date : 4 th February 2008
This is an appeal by the Northamptonshire County Council (“the Council”) from the judgment of His Honour Judge Metcalf, sitting at Northampton County Court, handed down on 14 March 2007. The appeal raises primarily an important issue of construction of the Provision and Use of Work Equipment Regulations 1998 (“the 1998 Regulations”).
The Facts
Mrs Smith (“the Claimant”) was employed as a carer/driver by the Council. As part of her duties she was required to collect Mrs Cotter from her home and take her by minibus to a Day Centre. This was an operation she had carried out three times a week for eight years prior to the date of her accident on 1 December 2004. The accident occurred as the Claimant was pushing Mrs Cotter in a wheelchair down a wooden ramp which led from the living room to the patio area outside Mrs Cotter's house. The Claimant stepped on the edge of the ramp which gave way, causing her to stumble and injure herself.
The ramp had been installed by the NHS in the 1990s and the judge said that “the Council was not liable to maintain it” by which he must have meant “not liable to maintain it in the ordinary way” since ultimately, as will appear, he found that the Council were in breach of a duty to maintain it having regard to the use made of it on the occasion of the accident. The ramp was made of wood and left outside on a permanent basis. The exposure to the elements meant that the edge had become rotten but the judge found that an inspection carried out by the Council, including the 'wiggle test', was adequate and that the ramp was not in a state of disrepair such as to put anybody on notice of something being wrong. It had been inspected both by employees of the Council, by a Union Representative and by the Claimant herself and no-one had found any problems with it.
Legal issues
The Claimant's case was initially pleaded on three bases: breach of the 1998 Regulations, breach of Manual Handling Operations Regulations 1992 and in common law negligence. At the end of the first day of hearing, HHJ Metcalf indicated that there was some doubt as to whether there was any evidence to support a finding of knowledge or constructive knowledge of the risk posed by the state of the ramp by the Council. He gave the Claimant's counsel an opportunity to consider the issue. Following this the Claimant withdrew the allegations of breach of Manual Handling Operations Regulations and negligence.
HHJ Metcalf concluded that the 1998 Regulations applied in this case. Those regulations impose on an employer a regime of strict liability in respect of “work equipment” and in particular as regards the maintenance of such equipment; see Stark v Post Office [2000] EWCA Civ 64. The judge found that the ramp was “work equipment” being “an appliance or piece of apparatus or possibly an installation” and that it was for “use at work”. He also found there was a breach. I would not have thought that in ordinary language this was “an appliance” or a “piece of apparatus”, but obviously was “an installation”. He found a breach of the strict liability to ensure that such equipment was maintained imposed by regulation 5(1); Mr Preston suggests that he may also have found a breach of regulation 4(1) which imposes a strict liability in relation to inadequate construction. On the appeal, Mr Preston for the Council does not contest that, if the ramp was work equipment for use at work within regulation 5(1), there was a breach of the strict duty imposed, but he submits this ramp was not work equipment for use at work. He submits that the point is an important one because if the Council is liable for failure to maintain a ramp such as this installed by a third party on the premises of a third party, the repercussions for Councils and indeed charities who send employees to visit premises is very great. It is common for such employees to use items which, on the judge's definition, might be work equipment being used by them in the course of their employment and thus on the judge's definition “at work”.
The 1998 Regulations
Mr Preston placed some reliance on the fact that in passing regulations relating to equipment at work the United Kingdom was fulfilling its obligations flowing from Council Directive 89/655/EEC. It passed first The Provision and Use of Work Equipment Regulations 1992 Regulations (the 1992 Regulations) and thereafter the regulations relevant to this case the 1998 regulations. Mr Preston accordingly took us to relevant parts of the Directive by reference to which he suggested we would be assisted in considering the breadth of the 1998 regulations. The parts on which he chiefly relied were the definitions of work equipment and use of work equipment, and Article 3 all of which I should quote:-
“Article 2—Definitions
For the purposes of this Directive, the following terms shall have the following meanings:
(a) 'work equipment': any machine, apparatus, tool or installation used at work;
(b) 'use of work equipment': any activity involving work equipment such as starting or stopping the equipment, its use, transport, repair, modification, maintenance and servicing, including, in particular, cleaning;
(e) 'operator': the worker or workers given the task of using work equipment.
Article 3 – General obligations
1. The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.
In selecting the work equipment which he proposed to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question.
2. Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimize the risks.”
What Mr Preston pressed on us was the use of the words “made available” and “selected” in Article 3 as indicating the nature of the connection between the employer and any equipment used. I should say straightaway that if, and in so far as Mr Preston was suggesting, he may gain support for narrowing the impact of the 1998 Regulations by reference to the Directive, I am doubtful whether he can legitimately do so [see what was said in Stark v The Post Office [2000] I.C.R.1013 particularly at 1023], but the concept of selected certainly appears in the 1998 Regulations themselves.
But if Mr Preston is to succeed in arguing that the regulations cannot have been intended to impose a strict liability for lack of maintenance or a strict liability in relation to construction, in relation to something which the employer may have selected but over which he had no “real control”, or by reference to some limitation of that nature, he must do so, in my view, by reference to the language of the Regulations themselves.
One of the authorities to which I shall refer deals with the construction of the 1992 Regulations, but in my view nothing turns on the slightly different language used in 1992 as compared with that used in 1998, and it is thus only necessary to set out the relevant provisions of the 1998 Regulations. The material parts are the definitions of “use” and of “work equipment” in regulation 2(1) which read as follows:-
“'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;
'work equipment' means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not);”
Regulations 3(2) and (3) are relevant:-
“3. . . .
(2) 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 of his at work.
(3) The requirements imposed by these Regulations on an employer shall also apply –
(a) to a self-employed person, in respect of work equipment he uses at work;
(b) subject to paragraph (5), to a person who has control to any extent of –
(i) work equipment;
(ii) a person a work who uses or supervises or manages the use of work equipment; or
(iii) the way in which work equipment is used at work, and to the extent of his control.”
Regulations 4, 5 and 6 need quoting in full :-
“ Suitability of work equipment
4. (1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.
(3) Every employer shall ensure that work equipment is used only for operations for which, and under...
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