England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND CITY OF LONDON COURT
(HIS HONOUR JUDGE SIMPSON)

		Royal Courts of Justice Strand London, WC2
		11 June 2004

1. LORD JUSTICE MAY: This is an appeal against the judgment and order of His Honour Judge Simpson, sitting at the Mayor's and City of London Court, on 23 February 2004. It is a personal injury action arising out of an accident at work. The trial was on liability only. The judge gave judgment for the claimant against the first and second defendants for damages to be assessed subject to a reduction of 50% for the claimant's contributory negligence. Lord Justice Clarke gave permission to appeal on one of the grounds advanced on behalf of the defendants. He refused permission on the second ground which the defendants, if necessary, renew before this court.
2. The facts are straightforward. The claimant was an experienced mechanic who had been promoted at work. He had been employed by the police for 7 or 8 years before the accident. He was very familiar with the work he was doing when he was injured. At the time of the accident he was employed by the Metropolitan Police Commissioner, the first defendant, as a senior craft grade and mobile maintenance operator. He is described by Mr Evans-Tovey, who appears on behalf of the defendants, as a police equivalent of an AA man.
3. On 15 July 1998, the claimant was doing some work on a Vauxhall Astra police dog van. The van was operated by the second defendant. In order to deal with what he perceived to be the problem, the claimant attempted to undo one of the wheel bolts on the front offside wheel with a knuckle bar and socket, when the bolt sheared off. As a result, the claimant fell awkwardly and his left hand and wrist struck the ground and a trolley jack base with some force. He sustained injury.
4. As a result, the claimant claimed damages against the first and second defendants alleging negligence and breach of statutory duty. The negligence case does not seem to have been seriously pursued. The judge said in his judgment that these allegations were barely touched on at the trial and he was satisfied that there was nothing in them.
5. The breach of statutory duty alleged was a breach of Regulation 6 of the Provision and Use of Work Equipment Regulations 1992. Regulation 6 imposes a strict liability subject to contributory negligence. The issue was whether the wheel bolt which sheared constituted "work equipment" within the Regulations. The judge held that it did. The first ground of appeal, on which Lord Justice Clarke gave permission to appeal, is that this was wrong.
6. The 1992 Regulations were made to implement Council Directive 89/391/EEC (Framework Directive) and its daughter directive, Council Directive 89/655/EEC (Work Equipment Directive). The preambles to the second of these contain general statements which do not, I think, help determine the specific issue in the appeal, but they give no indication in favour of the very wide application of the Regulations adopted by the judge. The definition of "work equipment" in Article 2 of that latter directive is "any machine, apparatus, tool or installation used at work".
7. In the 1992 Regulations "work equipment" is defined in Regulation 2 (1) to mean:

"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."

The same regulation defines "use" in relation to "work equipment" to mean:

"any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning, and related expressions shall be construed accordingly."

Article 3 of the Council Directive provides that -

"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 .....

In selecting the work equipment which he proposes to use, the employer should 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."

This indicates that the Directive is concerned with work equipment made available by an employer to workers for the work to be carried out by them. This is mirrored by Regulation 4 (1) of the 1992 Regulations which provides:

"The requirements imposed by these Regulations on an employer shall apply in respect of work equipment provided for use or used by any of his employees who is at work ..... "

Regulation 5 of the 1992 Regulations provides:

"(1) Every employer shall ensure that work equipment is so constructed or adapted so 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 conditions for which, it is suitable.

(4) In this regulation 'suitable' means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

The use of the words "in selecting work equipment" in Regulation 5 (2) reproduces the form of expression in the second part of Article 3.1 of the Directive.

Regulation 6 provides:

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

Regulation 7 provides:

"(1) Where the use of work equipment is likely to involve a specific risk to health or safety, every employer shall ensure that -

(a) the use of that work equipment is restricted to those persons given the task of using it; and

(b) repairs, modifications, maintenance or servicing of that work equipment is restricted to those persons who have been specifically designated to perform operations of that description (whether or not also authorised to perform other operations).

Finally Regulation 22 provides:

"Every employer shall take appropriate measures to ensure that work equipment is so constructed or adapted that, so far as is reasonably practicable, maintenance operations which involve a risk to health or safety can be carried out while the work equipment is shut down or, in other cases,

(a) maintenance operations can be carried out without exposing the person carrying them out to a risk to his health or safety; or

(b) appropriate measures can be taken for the protection of any person carrying out maintenance operations which involve a risk to his health or safety."

8. The judge held, as I have said, that the wheel bolt in this case was "work equipment". He held in the result that there was a breach of the strict liability under Regulation 6 (1). He did not explicitly hold that the claimant's employer had not ensured that the work equipment was maintained and in efficient state, in an efficient working order and in good repair, but this, we are told, was conceded.
9. Further, the judge did not, surprisingly to my mind, distinguish between the first and second defendants. The first defendants were the employer of the claimant. The second defendants were not. Of course, in this case both defendants were, in broad terms, the police and it may not matter in practice that judgment was given against both defendants. The regulations place obligations on employers, and in my view the distinction is necessary for the purpose of analysis. I also consider, as will appear, that this point bears on the meaning of the expression "work equipment", not least because Regulation 4 (1) shows that the regulations impose requirements on employers of employees who are at work. It was, in my view, incorrect for the judge to hold the second defendants, who were not the claimant's employer, liable in this case.
10. In reaching his conclusion that the wheel bolt in this case was "work equipment", the judge referred at length to the decision of Lord Abernethy, sitting in the Outer House of the Scottish Court of Sessions, in Kelly v First Engineering Ltd [1999] SCLR 1025. In that case -

"The pursuer was employed by the defenders as a leading trackman, stationed at Shettlestone Permanent Way. On 7 November 1995 he and two others were working on a stretch of railway track east of Airdrie, replacing insulated fish plates. The fish plates were attached to metal bolts, which required to be kept lubricated to facilitate changing. The pursuer was attempting to unscrew a bolt which had not been lubricated for a year. As he did so, the nut seized, a metal lug snapped and the pursuer's spanner jerked forward so that the pursuer's shoulder was strained. He raised an action of damages and averred that the defenders' predecessors, the British Railways Board, had lubricated the bolts every year but the defenders' system was to do so every two years and that this system was inadequate. He sued at common law and under reg. 6 of the 1992 Regulations. The defenders argued that the pursuer's statutory case was irrelevant and should not be admitted to probation, on the basis that the bolt which the pursuer was trying to loosen at the time was not 'work equipment' as the words were defined in reg 2."

The relevant part of Lord Abernethy's judgment is on page 1030, beginning just below letter C, where he said:

"In my opinion what I have to do here is to construe the words in regulation 2 defining 'work equipment', giving them their ordinary meaning and deciding whether the bolt in question here came within that definition. It was accepted that the only way in which the bolt could come within the definition was if it was either an appliance or if it was apparatus. Giving the word 'appliance' its ordinary meaning, I have some doubt whether the bolt was truly an appliance. However, 'apparatus' is a word of wide meaning and I am clearly of opinion that it is habile to cover this bolt. The argument put forward by Mr O'Carroll that the bolt was part of a structure and that a structure was not a piece of 'work equipment' was in my opinion unsound. It was based not on the actual words used in regulation 2 but the gloss put on those words in the Health and Safety Executive guidance. It my opinion it would be inappropriate to proceed on that basis. I am therefore of opinion that the pursuer's statutory case is relevant. Moreover, I am not persuaded that there is any reason why it should not be decided by a jury. If I am right in holding that the bolt in question here was 'work equipment', then the only question for the jury in terms of regulation 6 would be whether it was maintained in an efficient state, in efficient working order and in good repair. That, it seems to me, is a pure question of fact which would be entirely suitable for a jury to decide."

11. The judge in the present case noted that this case was concerned with the same regulations as, and with facts almost identical with, those in the present case. He saw no valid distinction and understandably considered it his plain duty to follow Kelly in holding that the wheel bolt in the present case was an apparatus and hence work equipment.
12. Mr Evans-Tovey submits that the wheel bolt is not work equipment within the definition in Regulation 2. It is not machinery, an appliance, a tool nor an assembly of components, although it might be a component. He submits that it is not an apparatus. This expression, he submits, is apt for climbing frames, ropes, ladders, harnesses, scientific apparatus, a telephone perhaps as examples, but not a wheel bolt.
13. Mr Evans-Tovey describes the legal issue as being whether the expression "work equipment" is so wide as to include things which had been provided to be worked upon, which he terms passive use, or whether it is limited to equipment which is used in the conventional sense of the word and which has been provided for active use (for example spades, screwdrivers, drills, mixers, circular saws, band saws, potters' wheels and so forth). He submits that the expression does not extend to things which the employee works on, but is limited to the equipment provided to enable the employee to carry out his work. There are, he suggests, indications in the Regulations to support this.
14. He refers to Guidance given by the Health and Safety Executive in relation to the 1992 Regulations. Examples given in paragraph 43 of these documents broadly support Mr Evans-Tovey's submission, but the Guidance has no standing as an aid of construction of the Regulations.
15. He refers also to Wallace v Balfour Beatty Rail Maintenance Ltd [2003] EWCACiv 72 and Griffiths v Vauxhall Motors Ltd [2003] EWCACiv 412, neither of which to my mind really bear on the issue in the present appeal. Mr Evans-Tovey submits that we should not follow the Scottish case of Kelly.
16. He submits that, on the judge's construction, a garage fitting tyres to a vehicle would be strictly liable, not only for faulty air guns and tools used to change wheels, tyres or exhausts, but also for defects on customers' cars over which they had no control.
17. Mr Carr's written submission made the following points. He submitted that the wheel bolt in the present case could be regarded as part of an assembly of components which are arranged with others to function as a whole. He submitted that a wheel bolt would be an appliance or possibly an apparatus. He points out that Regulation 6 (1) does not refer to use at all. It provides merely an absolute duty that work equipment is maintained in an sufficient state and so forth. If it is not, and the failure causes injury, liability is established. Regulation 4 provides that the Regulations apply in respect of work equipment provided for use or used. Regulation 2 (1) defines use to mean any activity involving work equipment. This, says Mr Carr, is deliberately wide; turning the bolt was activity involving it. In any event, the Regulations specifically provide that repairing, maintaining and servicing are included in the definition of use.
18. Mr Carr submits that, if the appellants were right, no repair or maintenance would be covered where a person was injured by failure of the equipment being worked on rather than the equipment being used to carry out the repair or maintenance. If this were correct, it would produce startling and surely unintended results. So, in the present case, if the driver had started the vehicle at Mr Hammond's request and a defect in the vehicle caused them both injury, the driver would be covered by the regulations but Mr Hammond would not.
19. Mr Carr submits that the Regulations were intended to implement the Work Equipment Directive 89/655 and should be given a purposive construction so as to give effect to the result envisaged by the Directive. Article 3.1 provides that an "employer shall take the measures necessary to ensure that the work equipment made available to workers ..... may be used by workers without impairment to their safety or health". In other words, the purpose of the Regulations is to ensure that any use does not result in impairment to safety. The qualification to the duty in Article 3.2 was held in the case of Stark v Post Office not to reduce the absolute nature of the duty imposed.
20. For my part, as I have already indicated, I do not think that the extremely wide purpose for which Mr Carr contends is to be found in either the Directive or the Regulations.
21. In Stark v Post Office [2000] ICR 1013 the Court of Appeal held that a postman's bicycle was work equipment for the purposes of the Regulations. The main significance of the decision in Stark was that it was decided that Regulation 6 (1) imposed strict liability. Mr Carr submits that the definition in Regulation 2 (1) clearly covers a marked police van. He submits that it is erroneous to concentrate on the wheel bolt in isolation. It was, he suggests, part of the police van which was itself work equipment.
22. In his oral submissions Mr Carr emphasised what he suggests would be wide "coach and horses" consequences of the appellant's submission. Workers would have the benefit of the strict liability under the Regulations on their employers if they were injured by defects in the tools and other equipment provided to do the job, but not defects in the objects on which they were working. Repairers and maintenance workers would be particularly affected, as would those working on assembly lines. He submits that the Regulations cover injuries resulting from any defect in equipment in the work place. He is driven to submit that if I take my car to have a tyre changed, the employer of the person who changes my tyre will be strictly liable if the employee is injured by a defect in my car - this on the basis that my car is work equipment within the Regulations.
23. In my judgment, the Regulations on their proper construction do not extend this far.
24. Although the definition of what may be work equipment is to be found in Regulation 2, the ambit of the expression "work equipment" in these Regulations is determined by Regulation 4. I am myself doubtful whether taking Regulation 2 alone, the wheel bolt was "work equipment" within the definition. However Regulation 4, it will be recalled, provides that -

"The requirements imposed by these regulations on an employer shall apply in respect of work equipment provided for use or used by any of his employees who is at work ..... "

This indicates, in my view, that the Regulations are concerned with what may loosely be described as the tools of the trade provided by an employer to an employee to enable the employee to carry out his work. I emphasis that my use of the expression "tools of the trade" is intended to be illustrative and not definitive. There plainly are many things such as, for instance, a hoist, which may be work equipment, for which the word "tools" would be inapt. The requirements of the regulation are imposed in relation to "work equipment" falling within the definition of Regulation 2 (1) which is provided by an employer for use by his employees when they are at work. It does not apply to an object which the employee is working on provided by others. Thus, the car which is taken to a garage for repair is not work equipment in the context of the garage and its employees. In the present case, the police van was not the property of the first defendant, but of the second defendant. The van might well be work equipment of a policeman driving it, but not of the police mechanic repairing it, at least where the van is not the property of the employer of the mechanic. In the case of Kelly, it looks as if the track upon which the pursuer was working was the property of the pursuer's employers. I would reserve the question which does not arise in the present case, whether that is a valid distinction. If it were not a valid distinction, I would respectfully disagree with the decision which Lord Abernethy made in that case.

25. There are, in my view, other clear indications that these regulations do not extend to that which the employee is working on as distinct from the equipment which he is using to undertake his work. These include:

(a) the general sense of both the Directive and the 1992 Regulations is that they are concerned with equipment which the employer provides to the employee (or which the employee brings along himself) to carry out his work - see especially Article 3 of the Directive and paragraph 4 of the Regulations.

(b) Regulation 5 (1) is not apt, in its reference to work equipment being suitable for the purposes for which it is used, to refer to the car having its tyres changed or the part assembled work piece on an assembly line.

(c) The reference to 'selecting work equipment' in Article 3 of the Directive and Regulation 5 (2) is not apt for the car brought in by a customer to have its tyres changed, nor the part assembled work piece on the assembly line. The employer does not select the car, just as he does not within these Regulations provide it for use by his employees in their work.

(d) Regulation 5 (3) is equally inapt for the wide construction advocated by Mr Carr.

(e) Although 'use' is defined by Regulation 2 (1) to include 'any activity involving work equipment', you do not 'use' something you are working on or repairing. You do by contrast use the equipment provided to enable you to do the work."

26. For these reasons, I would allow this appeal on the ground for which permission has been given. The application for wider permission would not then arise. If this is regarded as unduly restricting the strict liability provisions of the Regulations, that would be a matter for further legislation.
27. MR JUSTICE EADY: I agree with the judgment which has just been given.
28. LORD JUSTICE BROOKE: The Provision and Use of Work Equipment Regulations 1992 were introduced in order to implement EEC Directive 89/655/EEC (Work Equipment Directive). It is clear from the preambles to that directive that its purpose was to guarantee a better level of protection of the safety and health of workers (preamble 4), and, for that purpose, to introduce minimum requirements to try to guarantee a better standard of safety and health in the use of equipment (preamble 8). The directive defines "work equipment" as "any machine, apparatus, tool or installation used for work".
29. Against this background it is not surprising to find that in Regulation 5 three different obligations were imposed on employers in connection with the work equipment they were providing or which their employees used with their permission. They have to ensure that it is so constructed or adapted as to be suitable for the purpose for which it is used or provided (Regulation 5 (1)). When they are selecting it they have to have regard to the working conditions and to the existing risks to the health or safety of persons and the place in which it is to be used and to any additional risk posed by the use of this additional equipment (Regulation 5 (2)). They also have to ensure that it is used only for operations for which it is suitable and under conditions for which it is suitable (Regulation 5 (3)). After it has been selected and put in place Regulation 6 obliges them to ensure that it is maintained in an efficient state, in efficient working order and in good repair. Although courts are not statutorily obliged to take the contents of HSE Guidance on these Regulations into account, paragraphs 41 and 43 of the 1992 Guidance (and, incidentally, paragraphs 62 and 64 of the later 1998 Guidance) set out useful lists of typical equipment which employers might select and provide for their employees for the purposes of their work or which employees might use for these purposes.
30. There is nothing either in the Directive or the Regulations which suggest it was intended to impose the absolute obligation created, for instance, by Regulations 5 and 6 in relation to apparatus provided by third parties on which employees are to work.
31. Mr Carr bravely tried to argue that the owner of a car wash business or a garage was obliged to select the cars to be washed and repaired because they would become, by some alchemy, work equipment as soon as their employees started to work on them. Much clearer language would be required to create such wide-ranging obligations, and since the authors of the Work Equipment Directive expressly acknowledged the need to avoid imposing financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings (see preamble 5), I do not consider that its purpose was as wide as Mr Carr suggested.
32. For these reasons and the reasons given by Lord Justice May, with which I agree, I agree that this appeal should be allowed.
Order: Appeal allowed