Smith v Northamptonshire County Council
| Jurisdiction | UK Non-devolved |
| Judge | BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD HOPE OF CRAIGHEAD,LORD MANCE,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 20 May 2009 |
| Neutral Citation | [2009] UKHL 27 |
| Date | 20 May 2009 |
| Court | House of Lords |
[2009] UKHL 27
HOUSE OF LORDS
Appellate Committee
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
Lord Mance
Lord Neuberger of Abbotsbury
Appellant:
Patrick Limb QC
Tom Panton
(Instructed by Thompsons)
Respondents:
Hugh Preston
(Instructed by Shoosmiths)
My Lords,
The appellant, Mrs Jean Margaret Smith, was employed by the respondents ("the council") as a driver and carer. As part of her job she was required to collect people who were in need of care from their homes and take them by minibus to a day centre. One of those whom she had to collect was Mrs Gina Cotter, who was confined to a wheelchair. To get her out of her house the appellant had to take her down a wooden ramp outside the doors which led from the living room to a patio. It had been placed there about ten years earlier by the National Health Service. This was a task that she performed many times without incident. But as she was doing this on 1 December 2004 an edge of the ramp crumbled beneath her foot, causing her to stumble and sustain injury.
The appellant raised proceedings against the council, claiming damages. Her case was pleaded on three bases: breach of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306), breach of the Manual Handling Operations Regulations 1992 (SI 1992/2793) and common law negligence. At the end of the first day of the hearing before the trial judge, Judge Metcalf, the allegations of breach of the 1992 Regulations and of common law negligence were withdrawn. The case proceeded on the remaining allegation that the council was in breach of the 1998 Regulations.
The question which the judge had to decide was whether the 1998 Regulations applied in this case. It was not disputed that, if they did, the council was in breach of them as the ramp was defective and the regime which the Regulations impose is one of strict liability. The judge held that they did apply because the ramp was "work equipment" as defined by regulation 2(1) and it was being "used at work" within regulation 3(1). It followed that there was a breach of regulation 5(1). The council appealed, and the Court of Appeal allowed the appeal: [2008] EWCA Civ 181; [2008] ICR 826. It held that the ramp was not work equipment used by the appellant at work for the purposes of the Regulations. Waller LJ said that each case will turn on its own facts. The most significant factors in this case were that the ramp had been installed by people other than the council's own employees, that the council had no ability to maintain it and that in ordinary parlance it was part of Mrs Cotter's premises: para 34. The appellant now appeals against that decision to this House.
While it is, of course, true that each case will turn on its own facts, her appeal raises a question of general public importance. How are the provisions of the 1998 Regulations which determine its application to be construed in a case of this kind without producing results that, having regard to the purpose they were intended to serve, are excessively burdensome? It is important to bear in mind however that the purpose of the Regulations is to promote health and safety. In other words, they are there primarily to promote a culture of good practice with a view to preventing injury.
The head note to the 1998 Regulations states that they were made by the Secretary of State in the exercise of powers conferred on him by the Health and Safety at Work, etc Act 1974 and for the purpose of giving effect without modifications to proposals submitted to him by the Health and Safety Commission under section 11(2)(d) of that Act. Section 1(1) of the Act provides that the provisions of Part I, which includes the power to make regulations under section 14, shall have effect with a view to (a) securing the health, safety and welfare of persons at work and (b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work. In making its proposals the Health and Safety Commission was guided by the need to implement Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work ("the Equipment Directive"). The Regulations are arranged into five Parts. Part I, which is headed "Introduction", is the Part that is under scrutiny in this appeal. It consists of three regulations only. Among them is regulation 2 which is headed "Interpretation", and regulation 3 which is headed "Application". Regulation 2(1) defines the expressions "use" and "work equipment" in these terms:
" '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)".
These definitions are qualified in the usual way by the words "unless the context otherwise requires" at the beginning of the subsection, and by its concluding words which state that related expressions shall be construed accordingly.
Regulation 3 contains a series of paragraphs which deal with how the Regulations are to be applied. Those that are relevant to this case are regulations 3(2) and (3), which are in these terms:
"(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 at his work.
(3) The requirements imposed by these Regulations 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 at 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."
Regulation 3(5) states that the requirements imposed by the Regulations shall not apply to a person in respect of work equipment supplied by him by way of sale, agreement for sale or hire-purchase agreement.
Part II, which is headed "General", contains a series of regulations dealing with, among other things, the suitability of work equipment (regulation 4), maintenance (regulation 5) and inspection (regulation 6). Each of these three regulations is introduced by the words "Every employer shall ensure". Regulation 4 states, inter alia:
"(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 risk to 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 equipment."
Regulation 5 states:
"(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.
(2) Every employer shall ensure that where any machinery has a maintenance log, the log is kept up to date."
Parts III and IV impose similar duties in regard to mobile work equipment and power presses.
In each case the steps that the regulations prescribe must be taken. It is no defence to say that it was impossible to achieve it because there was a latent defect or because its achievement was not reasonably practicable. In Stark v Post Office [2000] ICR 1013, 1023, Waller LJ said of regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 (SI 1992/2932), which was in the same terms as regulation 5(1) of the 1998 Regulations which has replaced it, that it imposed an absolute obligation. In doing so he followed a long line of authority to the same effect: Smith v Cammell Laird & Co Ltd [1940] AC 242; Galashiels Gas Co Ltd v Millar [1949] AC 275; Hamilton v National Coal Board [1960] AC 633; see also Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107. This point is not now disputed, but it forms an important part of the background.
The facts
The appellant had worked for the council for many years. In the course of her employment with them she had been taking Mrs Cotter to the day centre three times a week for about eight years before the accident. Her duties involved wheeling Mrs Cotter from the living room to the patio, then through the back garden into the bus which took her to the day centre. Steps led down from the living room to the patio. A ramp had been provided to assist the movement of the wheelchair over these steps. If it had not been there the council would have had to provide the appellant with some other means of achieving this.
The ramp had been installed by the NHS about ten years earlier following an assessment of Mrs Cotter's requirements. It was left outside and was used very frequently. The council carried out their own assessment of it for the purpose of ensuring Mrs Cotter's safety. This was also done to discharge their obligations to the appellant under the Manual Handling Operations Regulations 1992 and at common law. They tested its stability. An employee walked up and down it and stood on it, jiggling up and down to check whether it was sturdy. Their employees were trained to perform a visual check of the ramp every time they visited Mrs Cotter's premises. It was not found to have been in an obvious state of disrepair prior to the accident. This, then, is a case of a latent defect. But that affords no defence to a case brought...
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