England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE FABER
(SQ307038)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 July 2006

Lord Justice Pill :

1. This is an appeal against the judgment of Her Honour Judge Faber, sitting at the Central London County Court on 10 June 2005, by which she found PRP Architects ("the appellants") liable in damages for personal injuries to Ms Precious Reid ("the respondent") by reason of a breach of statutory duty, namely breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 ("the 1998 Regulations"). At the hearing, claims by the respondent against managing agents of the building where the accident occurred, Messrs Kinney Green, and Industrial Lift Services Limited, who had a contract with the managing agents for the service and maintenance of a lift, were not pursued. I will refer to the pleaded claim in negligence at a later stage. The trial was on the issue of liability only.
2. The respondent was employed by the appellants, a firm of architects, as a receptionist at office premises at 1, Lindsey Street, Smithfield, London EC1. The building was owned by the Corporation of the City of London. A part of the second floor, known as suite B, was let to the appellants under a ten year lease dated 9 July 1998. Access to the offices was by means of stairs and of a lift, both of which opened into a lobby area on the ground floor. The lift, stairs and lobby area were common parts of the premises, as defined in the lease, and were not let to the appellants. The evidence as to the size of the building and the use made of it was sparse. On the second floor, there were two tenants in addition to the appellants. The first floor was occupied by another commercial tenant.
3. The respondent was injured on 20 November 2000 when leaving the lift on the ground floor at the end of her working day. Her shoulder bag fell from her shoulder. As she reached down to pick it up, the lift door closed trapping her right hand. At the trial, it was conceded that safety devices which should have prevented the door from closing on the respondent's hand did not work. A defect led to a power failure and prevented their operation. The respondent sustained a crushing injury to her right wrist and the base of her right thumb. It is conceded that, if the 1998 Regulations imposed statutory duties on the appellants with respect to the lift and to the use made of it by the respondent at the material time, the appellants were in breach of Regulation 5.
4. Regulation 5(1) of the 1998 Regulations provides:

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

"Work equipment" is defined in Regulation 2 as meaning "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)". Regulation 3(2) of the 1998 Regulations provides:

"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".

5. The 1998 Regulations were enacted pursuant to 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. In Article 2(a) of the Directive, "work equipment" is defined as "any machine, apparatus, tool or installation used at work". Article 3(1) provides:

"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".

Article 3(1) goes on to require the employer to pay attention to specific working conditions and characteristics and to hazards which exist at the work place when "selecting the work equipment which he proposes to use".

6. The definition of "work equipment" in the 1998 Regulations thus closely follows the language of Article 2(a) of the Directive. Attention was drawn to the 5th preambular paragraph to the Directive in support of the appellants' submission that the 1998 Regulations should not be given the wide-ranging application for which the respondent contends:

"Whereas, pursuant to the said Article [Article 118a of the Treaty] such directives must avoid imposing administrative, financial and legal constraints in a way in which would hold back the creation and development of small and medium-sized undertakings"

The 8th preambular paragraph provides:

"Whereas compliance with the minimum requirements designed to guarantee a better standard of safety and health in the use of work equipment is essential to ensure the safety and health of workers".

The 1998 Regulations replaced the Provision and Use of Work Equipment Regulations 1992. There are differences in wording between the two sets of Regulations. We have not been provided with information from which to know why it was considered appropriate to replace the first with the second within a comparatively short time.

7. Claims were also pleaded under the Workplace (Health Safety and Welfare) Regulations 1992 ("the Workplace Regulations") and Section 1 of the Employers Liability (Defective Equipment) Act 1969 ("the 1969 Act"). Having found for the respondent under the 1998 Regulations, the judge declined to make findings on the other pleaded grounds.
8. The evidence as to the extent of the use made of the lift by the respondent was also sparse. However, the judge found, and was entitled to find, that in addition to using the lift in order to obtain access to and egress from the appellants' premises on the second floor, the respondent "used the lift in the course of running errands for her employers". There was no evidence as to the frequency of such errands.
9. The judge found that the appellants "provided" the lift for use by the respondent at work and also that she used it at work with their permission. She found that the lift was "work equipment" within the meaning of Regulation 2(1) of the 1998 Regulations and that the lift was defective so that there was a breach of Regulation 5(1) of the 1998 Regulations. The judge found that, for Regulation 5 to apply, it was not necessary for the employee to suffer injury in the course of her employment but also held that she was in fact in the course of her employment when injured.
10. The appellants submit that the lift was not at the material time an "installation for use at work", within the meaning of the 1998 Regulations, and not therefore "work equipment" within the meaning of Regulations 3 and 5. The lift was not "provided for use by an employee", and not "used by an employee at work" within the meaning of Regulation 3(2). Further, Article 3 of the Directive applies to work equipment "made available to workers in the undertaking and/or establishment" which would not cover a lift outside the appellants' premises and not owned, leased, rented or maintained by the appellants. The 1998 Regulations should be construed on that basis, it is submitted. Further, for the Regulations to operate, the respondent had to establish that she was acting in the course of her employment and, having left the employer's premises at the end of the day, she was not so acting.
11. Under the lease, the appellants had rights of passage in the lifts in the building during normal working hours for the purpose of gaining access to and from the demised premises (Schedule, paragraph 2(B)(iii)). The appellants paid service charges under the lease for "reasonable and proper outlay" on work including "repairing, maintaining and renewing as appropriate the lifts" (Schedule, Part III (q)). The landlords were required, under Clause 6(b) of the lease, to "carry out the works referred to in sub-clause (a) and (b) of Clause 2". That clause refers to the services specified in paragraph 5(C) of the schedule, which includes Part III (q) already mentioned. The evidence of the appellants' Financial Director, Mr Griffiths, was that the appellants could have made the landlords comply with that obligation. While it is not relevant to the dispute between the present parties, the lease also provided (Schedule paragraph 2(B)(iii)) that the landlords shall "not be responsible to any person using the said lifts for any neglect or default of any servant or any agent of the landlords in the operation of the said lifts or for any loss damage or injury resulting therefrom …"
12. Having been referred to the appellants' skeleton argument which was submitted to the judge, and to her judgment, it is clear that the appellants did not argue that the lift fell outside the definition of "work equipment" in Regulation 2 of the 1998 Regulations, subject, that is, to argument as to the effect of the words "for use at work" in the Regulations. Before this court, Mr Vincent, for the appellants, sought to argue, though somewhat faintly, that the lift was not work equipment.
13. I have to say that I do not find the definition an easy one to apply. As Lord Wilberforce stated, when considering the word "installation" in its probably more common use as describing an action or process, in Engineering Industry Training Board v Foster Wheeler John Brown Boilers Ltd [1970] 2 All ER 616, at 620, that "it is not a word of any great precision." We have not been assisted as to how the definition of work equipment, or the Directive as a whole, have been construed and applied in other member states of the Union.
14. I would not permit it to be argued in this court that the lift was not work equipment, because the point was not taken below. However, I accept that the expression "work equipment" should be given a broad construction. The word "installation" is capable of covering a lift in a building as "a large piece of equipment installed for use", one of the definitions of installation in the Concise Oxford Dictionary (10^th Edition). If the point had been open, I would have welcomed further argument. If the respondent had descended by the stairs and her hand had become jammed in a faulty fire door, I doubt whether the Regulations would have applied. A distinction is necessary between "work equipment" on the one hand and the structure and condition of premises on the other. The Workplace Regulations, considered later in this judgment, limit the employer's duties to workplaces under the employer's control.
15. I add that the Approved Code of Practice and Guidance on the 1998 Regulations, issued by the Health and Safety Commission, states in terms that the Regulations apply "to work equipment used in the common parts of shared buildings (such as lifts)." However, that and some other illustrations given in the Code, are not supported by explanation or authority. They cannot, in any event, be treated as binding.
16. Since the lift must be taken to be work equipment, the case turns on the expression "use at work" in Regulations 2 and 3(2). If the lift was being "used at work", it need not, as the Regulation is drafted, have been "provided" by the employer. For the respondent, Mr Huckle submits that, in the case of an employee whose work takes him from building to building, such as a travelling salesman, the Regulation would cover, in relation to the employer, the lift in every such building and also public transport used in travelling between them.
17. For the appellants, Mr Vincent concedes that, had the respondent been running an errand for the appellants at the material time, such as collecting the appellants' mail from the lobby, the appellants would have been liable under Regulation 5. The issue is as narrow as that. Because, when the accident happened, the respondent had left the appellants' premises at the end of the day's work, they were not liable, it is submitted. It is relevant to bear in mind, it is submitted, that the lift was outside the appellants' premises, outside their control and was not for their employees' exclusive use. The existence of a contractual remedy for want of repair does not, for present purposes, confer any degree of control over the lift, it is submitted.
18. In Stark v The Post Office (transcript 2 March 2000), a delivery postman was provided with a bicycle with which to make his deliveries. The bicycle was not in an efficient state or in efficient working order. Having cited Galashiels Gas Company Limited v Millar [1949] AC 275, a case under the Factories Act 1937, Waller LJ, with whom Robert Walker LJ agreed, stated that Regulation 6(1) of the 1992 Regulations, the equivalent of Regulation 5 of the 1998 Regulations, imposed an absolute obligation and the Post Office were in breach of their statutory duty. Waller LJ referred to the Work Equipment Directive, and also stated that "all that can be said of the Directive is that it sought to bring in minimum requirements. … There is nothing in the Directive to discourage a member state in fulfilling its obligations under the Directives from imposing more stringent duties than the minimum required". I respectfully agree with that proposition. The employer's obligation may, upon construction of the Regulations, be broader than that required by the Directive.
19. Mr Vincent seeks to rely on the decision of this court in Hammond v Commissioner of Police for the Metropolis & Ors [2004] EWCA Civ 830, a case under the 1992 Regulations. A mechanic employed by the Commissioner was injured when a wheel bolt on a van on which he was working, and was not the property of his employer, sheared. It was held that the 1992 Regulations, not materially different from those of 1998 for this purpose, did not impose the absolute obligation in Regulation 5 "in relation to apparatus provided by third parties on which employees are to work" (Brooke LJ at paragraph 30). Dyson LJ, with whom Eady J agreed, stated, at paragraph 24:

"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 emphasise 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, but for which the word "tools" would be inapt. The requirements of the Regulation are imposed in relation to "work equipment" … 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".

While the court thus recognised a limitation upon the scope of the Regulations, it is not one which, in my view, is relevant in the present case. The lift in the present case shares with the wheel bolt in Hammond the attribute that it is the property of a third party but it is a facility used in the course of work, which is different from an object worked on.

20. Leaving aside Mr Huckle's submission as to public transport and apparatus, the potential scope of the employer's duty, stemming as it does from a Directive which provides that it does not wish to hold back the creation and development of small and medium size business undertakings (5th preamble), is, nevertheless, on a literal reading, very broad in its potential scope. It could be held to cover an employer occupying a suite on the second floor of premises whose employee is injured as a result of a defect in the lift at the thirtieth floor. It could be held to cover such a defect in an adjoining building, which the employee was visiting while running an errand, or a building miles away. Drawing the line will be difficult.
21. The test is whether the equipment is being used "at work" and there is a definition of that expression in the Health and Safety at Work etc Act 1974 ("the 1974 Act"). The 1998 Regulations are made in the exercise of powers conferred by that Act. Section 52(1)(b) of the 1974 Act provides that "an employee is at work throughout the time when he is in the course of his employment, but not otherwise". That definition, however, applies for the purposes of Part I of the 1974 Act, by which the general duty upon an employer is to ensure the health, safety and welfare at work of all his employees, "so far as is reasonably practicable". I do not consider that the absence of a spatial restriction in that definition necessarily operates to impose an absolute obligation under the 1998 Regulations upon an employer wherever the employee is working and whatever work equipment is involved. The definition cannot, in my judgment, be transposed verbatim into the application of the 1998 Regulations, which create strict liabilities.
22. Whether the employee is acting in the course of his employment is, in my view, certainly an important factor to be considered in deciding whether he is using equipment "at work" in the material time. However, the expression 'at work', as used in the context of the Directive, with its reference to 'undertaking' and 'establishment', may import a spatial or geographical limitation upon the places at which, and hence upon the equipment to which, the duty attaches. The degree of control exercised over the equipment by the employer may also be a factor in deciding whether the equipment is being used at work within the meaning of the Regulations.
23. While a tool used by an employee or equipment such as a bicycle, as in Stark, may come within the definition "work equipment" used at work wherever used by the employee, an installation, something installed in premises, may require a closer territorial link with the employer's place of business. These issues do not require decision in the present case. I mention them to indicate that a finding in the employee's favour in the present case does not involve acceptance of the submissions of Mr Huckle as to the extent of an employer's duties under the 1998 Regulations.
24. The issue in Armstrong, Whitworth & Co. Ltd v Redford [1920] AC 757 was whether the employee was in the course of her employment under the Workmen's Compensation Act 1906. Employed as a machinist, she left the works where she was employed during the dinner hour, as the rules required, and went to a canteen provided by the employers for their women workers in another part of the premises. Though in the same curtilage as the works, the canteen could only be reached by the street. When leaving the canteen, in order to return to her work, she fell.
25. By a majority, it was held in the House of Lords that there was evidence upon which the arbitrator could find that the injury arose in the course of her employment. Lord Sumner stated, at page 775:

"… She resorted to the canteen instead of availing herself of the cessation of regulation work to go somewhere else. Equally in either case she has to come back and, in the dinner hour, just as at the beginning and end of the day, the course of employment may extend to traversing the means of egress or regress provided by the employer for that purpose. Had the accident happened in the street the case might well have been different."

26. Lord Dunedin, who dissented, attached importance to the interruption of work during the meal break, the requirement to leave the premises and to clock on again after the break. However, he stated, at page 773:

"The test seems to me to be, not the situation of the premises, but whether resort to the premises is a part of the duty owed to the employer. … Nor can I myself take the view … that the canteen is practically in the position of an access to the works and that an accident there is really an accident within the works happening to a workman hurrying to his work".

That approach also suggests that, in Lord Dunedin's dissenting view, the present appellant would have been "at work" at the material time.

27. I have come to the conclusion, in agreement with the judge, that, when leaving, at the end of the day's work, a lift located in the lobby of the building where the employee worked, the respondent was using it at work within the meaning of Regulation 3(2) of the 1998 Regulations. For present purposes, the line should not be drawn when the respondent left her office to enter the lift or when the lift left the second floor. The difficult questions which may arise when an employee is more remote from her place of work, or has no single regular place of work, need not be determined in this case.
28. On that ground, I would dismiss this appeal. That being so, I deal with the other pleaded grounds, on which the judge declined to make a ruling, briefly.
29. Regulation 4(1) of the Workplace Regulations provides, insofar as is material:

"Every employer shall ensure that every workplace, modification, extension or conversion which is under his control and where any of his employees works complies with any requirement of these Regulations …"

By virtue of Regulation 4(2), the obligations apply to every person who has "to any extent, control of a workplace, modification, extension or conversion".

30. Regulation 5(1) of the Workplace Regulations provides:

"(i) The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.

(ii) Where appropriate, the equipment, devices and systems to which this regulation applies shall be subject to a suitable system of maintenance

(iii) The equipment, devices and systems to which this regulation applies are -

(a) equipment and devices a fault in which is liable to result in a failure to comply with any of these regulations; and

(b) … "

31. By virtue of Regulation 2 of the Workplace Regulations, "workplace" includes:

"(b) any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work or where facilities are provided for use in connection with the place of work other than a public road".

Regulation 18(1) provides:

"Doors and gates shall be suitably constructed (including being fitted with any necessary safety devices)."

Doors and gates shall not, by virtue of regulation 18(2), comply with that paragraph unless "any powered door or gate has suitable and effective features to prevent it causing injury by trapping any person" (Regulation 18(2)(c)).

32. The court has not heard full argument on the point but I am unable to find that the appellants, to any extent, had control of the lift within the meaning of Regulation 4 of the Workplace Regulations. It was not theirs and the responsibility for its repair and maintenance was not theirs. The operation of the control mechanism of the door to the lift was not under the control of the appellants. They could themselves do nothing about the defect which arose and which caused the accident to their employee. The fact that they had a contractual right to have the lift repaired did not in my judgment confer any degree of control upon it for present purposes.
33. Common law liability was also asserted in reliance on Section 1(1) of the 1969 Act which provides that an injury shall be deemed to be attributable to negligence on the part of an employer where "an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer's business".
34. The respondent is not entitled to rely on the 1969 Act in this court. While the judge did in her judgment refer to concessions made about safety devices and referred to the 1969 Act, the judge stated that the claimant "did not pursue the pleaded negligence at common law". To take advantage of the 1969 Act, negligence at common law would need to be shown. On the material before this court, Mr Huckle has not persuaded me that a case at common law was pursued. The claimant accepted that the defect was not foreseeable by the defendants. If negligence had been pursued, the hearing would have taken a different course, including evidence and cross-examination about the cause of the accident. The respondent is, in my judgment, confined to arguing breaches of statutory duty.
35. However, for reasons given earlier, I would dismiss this appeal.

Lady Justice Smith:

36. I agree.

Lord Justice Neuberger:

37. In Whitworth's case [1920] AC 757, to which Pill LJ has referred, Lord Wrenbury, who was with the majority, gave a brief speech, to the following effect:

"My Lords, the language of the Act…and the decisions upon it are such as that I have long since abandoned the hope of deciding any case upon the words 'out of and in the course of" upon grounds satisfactory to myself or convincing to others. In the present case I say no more than that I think that the girl was in the course of her employment when, in hurrying down the stairs to achieve punctuality in 'clocking on,' she was endeavouring to comply with the duty of punctuality owed to the employer, and that the stairs being 'very slippery,' she was exposed to the danger which resulted in the accident by the fact that it was incidental to her employment that she was allowed to be and was in that place."

38. In my opinion, the observations in the first sentence of that speech have obvious resonances here, in relation to the 1998 Regulations and the words "provided for use or used by an employee… at work" in regulation 3(2). For a court to seek to redefine a statutory expression is often dangerous or unhelpful, and can fairly be said to be inappropriate in principle. Judicial reformulation can lead to error, as subsequent decisions may then be based on the reformulated expression, and, if it gives rise to a test which is different from the statutory test, the court will obviously risk going wrong. If the judicial reformulation gives rise to a test which is the same as the statutory test, it will normally be of no more assistance than the statutory test.
39. Even to seek to identify any general principles with a view to determining whether an item of work equipment was so provided or used, can often be unhelpful, indeed dangerous. The circumstances which can give rise to claims for breach of regulation 5(1) are so multifarious that it will only be an exceptional case in which it could be appropriate for a judge to try to lay down any general guidance. Any such guidance would inevitably be framed in the light of the particular facts of the case before him. Such guidance would therefore normally either be inappropriate in relation to cases on different facts, or would be so hedged about with qualifications to avoid that risk as to be of little, if any, general value. As in many other areas of law, it appears to me that this is a topic on which such principles as can be extracted through legal proceedings must be developed on an incremental, case by case, basis.
40. In the light of the facts as set out in paragraphs [2], [8] and [11] of the judgment of Pill LJ, it appears to me that, to put it at its lowest, Her Honour Judge Faber was entitled to conclude that the lift in this case constituted "work equipment" falling within regulation 5(1), and that it fell within the ambit of regulation 3(2), in relation to the respondent and her employment by the appellant.
41. I reach this conclusion on the basis of the following facts:

(a) The lift was within the building containing, and served as a means of access to and egress from, the office in which the appellant carried on business and in which the respondent carried on her work as an employee of the appellant;

(b) The use of the lift was the or, at any rate, a natural and obvious means for obtaining such access and egress for employees of the appellant, the only alternative being stairs, also in the common parts of the building;

(c) The lift was used by the respondent as a means of access to, and egress from, the office, when coming to, and leaving, work, and when carrying out errands in the course of her employment with the appellant;

(d) The right to use the lift, together with its employees and visitors, was included in the demise to the appellant in its lease of the office;

(e) The lease included an obligation, enforceable at the suit of the appellant, by its landlord to repair maintain and renew the lift;

(f) The accident the subject of the instant claim was suffered by the respondent when using the lift to get out of the building after leaving the office at the end of her day's work for the appellant.

42. I am not saying that each or any of these factors is vital or determinative of the issue which we or the judge had to decide. What I am saying is that, in much the same way as Lord Wrenbury in the second sentence of his speech, my judgment is that, in the light of all these factors, the judge was entitled to reach the conclusion that she did.
43. Accordingly, like Pill LJ, with whose judgment I entirely agree, and Smith LJ, I would dismiss this appeal.