Stark v Post Office

JurisdictionEngland & Wales
JudgeLORD JUSTICE WALLER,LORD JUSTICE ROBERT WALKER
Judgment Date02 March 2000
Judgment citation (vLex)[2000] EWCA Civ J0302-14
Docket NumberCase No: CCRTF 1999/0687/B2
CourtCourt of Appeal (Civil Division)
Date02 March 2000

[2000] EWCA Civ J0302-14

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT

His Honour Judge Cracknell

Before

Lord Justice Waller and

Lord Justice Robert Walker

Case No: CCRTF 1999/0687/B2

Stark
Appellant/Claimant
and
The Post Office
Respondent/Defendant

M Redfern Esq QC, Mr S Wood (instructed by Simpson Millar for the Claimant)

C Storey Esq QC, Mr R Copnall (instructed by Nabarro Nathanson for the Defendant)

LORD JUSTICE WALLER
1

Mr Stark the appellant is 60 years of age. He was employed as a delivery postman by the Post Office the respondents. The Post Office provided him with a bicycle with which to make his deliveries. On 29 th July 1994 in the course of his employment he was riding his bicycle along Padstow Close, Bransholme, Hull when without warning his front wheel locked and he was propelled over the handlebars and suffered serious injury. The accident was caused by the fact that the stirrup, part of the front brake, broke in two, and one part lodged in the front wheel.

2

It seems that the cause of the stirrup breaking was either metal fatigue or some manufacturing defect. The judge found, and there is no challenge to this finding, that the "defect would not and could not have been discoverable on any routine inspection""a perfectly rigorous examination would not have revealed this defect".

3

The Post Office did in fact have a policy of replacing bicycles at 10 years, but this was not an inflexible rule. Sometimes, (as in the case of this bicycle) they thought this bicycle had a few years serviceable life left and allowed it to continue in service. This bicycle was in its 14 th year. The judge found that if it had been replaced at 10 years the accident would have been prevented but did not suggest there was any fault on the part of the Post Office in taking the decision they did.

4

In the result His Honour Judge Cracknell found that there was no liability in negligence and from that finding there is no appeal.

5

The judge also found that there was no breach of statutory duty, and thus dismissed Mr Stark's claim. The regulations relied on by Mr Wood on behalf of Mr. Stark before the judge were regulations 5 and 6 of the Provision and Use of Work Equipment Regulations 1992. Before us Mr Redfern QC has not relied on regulation 5 and this appeal is concerned with the judge's ruling that regulation 6(1) was not breached by the Post Office. Regulation 6(1) is in the following terms:—

"Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

6

It seems that the argument before the judge on behalf of the Post Office was that the regulation did not apply because the regulation was concerned with maintenance and not with replacement, and that if anything this was a replacement case. I am not sure the judge accepted that argument because at page 3 of his judgment he said:—

"On the face of the matter therefore it seems that this regulation may import strict liability into this part of the law. On the other hand, it seems to me the primary obligation is to institute and carry out a system of maintenance to the very best of their ability and this the Post Office did. At the risk of indulging in sophistry the visible state of the bicycle immediately prior to the event would have confirmed that fact."

7

But clearly the matter has been argued very differently in this court than it was before the judge. Indeed the judge did not have cited to him the authorities construing similar words in previous regulations which have been the foundation of Mr Redfern's argument in this court, that regulation 6(1) imposes an absolute duty on the Post Office. Furthermore, the judge was not asked to consider the response to those authorities as put forward by Mr Storey QC. He submitted that whatever those authorities may suggest as the proper interpretation of similar words in previous regulations, the particular regulations must be read in the light of the Work Equipment Directive 89/655 which is the Second Individual Directive within the meaning of Article 16(1) of the Framework Directive 89/391/EEC. The particular regulations were intended to give effect to those Directives and, submitted Mr Storey, the contemplation of the Directives was of something less than an absolute duty. They must, he also submitted, be read in their context including (1) that regulation 6(1) is all-embracing and appears to apply to any equipment supplied to an employee however important or unimportant and whether inherently dangerous or not; and (2) that whereas in those cases where the words have been construed so as to impose an absolute obligation, so far as any criminal liability is concerned, there have been what in the course of argument have been described as escape clauses, in the case of regulation 6(1) there is no escape clause and penal sanctions can follow if there is any breach established.

8

Arguments in more detail

9

Mr Redfern's argument is that regulation 6(1) imposes an absolute obligation. His argument is straightforward. Work equipment is defined as "any machinery, appliance, apparatus or tool and any assembly of components which, in order to achieve a common end, are arranged and controlled so that they function as a whole" (see regulation 2(1)). That definition includes a bicycle but may place some limit on Mr Storey's suggested "all-embracing". He submitted that "maintained in an efficient state, in efficient working order … " meant that the bicycle had to be kept in a state in which it worked efficiently at all times; the bicycle was not working efficiently when the stirrup broke; and that whatever the reason for it not working efficiently, the Post Office were in breach of the regulation.

10

He submitted that the wording used in regulation 6(1) had been construed as imposing such an absolute obligation when used in other regulations concerned with the safety of employees. He relied in particular on Galashiels Gas Co Ltd v Millar [1949] AC 275.and Hamilton v National Coal Board [1960] AC 633. In Galashiels the headnote reads:—

"By the Factories Act, 1937, s. 22, sub-s. 1: "Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained." By s. 152, sub-s. 1, the expression "maintained" means "maintained in an efficient state, in efficient working order and in good repair."

By s. 22, sub-s. 1, an absolute and continuing obligation is imposed, so that proof of any failure in the mechanism of a hoist or lift establishes a breach of the statutory duty, even though it was impossible to anticipate that failure before the event or to explain it afterwards and even though all reasonable steps have been taken to provide a suitable hoist or lift and to maintain it properly."

11

That headnote is amply supported by the speeches of Lord Morton, Lord MacDermott and Lord Reid with whom Lord Normand agreed. Lord Morton, for example, said at 282:—

"My Lords, in my view the Lord Ordinary supplied the correct answer to the whole of this argument when he said (2) : "In my opinion … . there is imposed on the defenders an absolute and continuing obligation binding upon them which is not discharged if at any time their lift mechanism, in this case the brake, is not maintained in an efficient state, in efficient working order, and in good repair." The words of the sub-section are imperative "shall be properly maintained" and I can find nothing in the context or in the general intention of the Act, read as a whole, which should lead your Lordships to infer any qualification upon that absolute obligation. It is quite true that the sub-section, so read, imposes a heavy burden upon employers, but the object of this group of sections is to protect the workman. I think the sub-section must have been so worded in order to relieve the injured workman from the burden of proving that there was some particular step which the employers could have taken and did not take. This would often be a difficult matter, more especially if the cause of the failure of the mechanism to operate could not be ascertained. The statute renders the task of the injured workman easier by saying, "You need only prove that the mechanism failed to work efficiently and that this failure caused the accident.""

12

Lord MacDermott said at 286:—

"My Lords, the word "maintain" when used in relation to the state or condition of things is not always used in the same sense. It may be used to indicate the continuance of a particular state or condition, as when one says of someone that "he maintains his buildings just as they were." But on occasion it takes colour from the work of maintenance and is used in reference to the acts done or the requisite to be done in the course of maintenance, as when one says of another that "he maintains his buildings methodically." This latter use gives the word "maintained" in relation to machinery rather the meaning of "serviced" or "looked after" or "attended to" —I doubt if there is an exact synonym —and it was in this sense, according to the appellant's argument, that the word ought to be read in s. 22, sub-s. 1. If that argument prevails the appeal should succeed, as the Lord Ordinary has found (1) that the appellants took "every practical step to ensure that the lift mechanism worked properly and was safe to use," and, again, that "the failure of the brake was one which, apparently, nobody could have anticipated or, after the event, explain.

My Lords, had the legislature thought fit not to define "maintained" Mr. Guest's submission on this aspect of...

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