England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
His Honour Judge Metcalf
5NG13468

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/03/2008

Lord Justice Waller :

1. 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

2. 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.
3. 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

4. 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.
5. 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

6. 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."

7. 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.
8. 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.
9. 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);"

10. 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."

11. 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 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.

Maintenance

5. (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.

Inspection

6. (1) Every employer shall ensure that, where the safety of work equipment depends on the installation conditions, it is inspected –

(a) after installation and before being put into service for the first time; or

(b) after assembly at a new site on a new location,

to ensure that it has been installed correctly and is safe to operate.

(2) Every employer shall ensure that work equipment exposed to conditions causing deterioration which is liable to result in dangerous situations is inspected -

(a) at suitable intervals; and

(b) each time that exceptional circumstances which are liable to jeopardise the safety of the work equipment have occurred,

to ensure that health and safety conditions are maintained and that any deterioration can be detected and remedied in good time.

(3) Every employer shall ensure that the result of an inspection made under this regulation is recorded and kept until the next inspection under this regulation is recorded.

(4) Every employer shall ensure that no work equipment –

(a) leaves his undertaking; or

(b) if obtained from the undertaking of another person, is used in his undertaking.

unless it is accompanied by physical evidence that the last inspection required to be carried out under this regulation has been carried out.

12. Mr Preston's starting point is that there must be some limitation on an employer's strict liability. As he pointed out, on a very wide construction of the language, a courier driving his van to deliver a parcel the other side of a bridge which collapses could succeed against his employer on the basis that the bridge was an installation being used by the employee while at work. Mr Berrisford did not shrink from submitting if necessary that that might be so, but he submitted that in any event this case was many miles from that example because in this case the employer inspected the ramp and chose this ramp for use by its employee to assist in wheeling out Mrs Cotter to the Council's mini-bus.
13. I would accept Mr Preston's submission that it would be unlikely that the Regulations should be construed in the very wide way his example of the bridge and the courier would entail. Indeed, it seems to me that on two occasions which these regulations or the 1992 predecessor regulations have been considered in the Court of Appeal, this court accepted a more limited construction than such an example would entail.
14. In Hammond v Commissioner Police for the Metropolis [2004] ICR 1467 the court was concerned with injury caused by a bolt sheering. The bolt was part of a motor car being repaired, being worked on by an employee. In paragraphs 24 to 25 May LJ said this:-

"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."

15. There could be said to be two aspects to his reasoning (a) that the regulations apply to tools of the trade provided by the employer, and (b) that something worked on, provided by others, cannot be equipment. However he recognised that the regulations did apply to equipment which the employee brought along himself and thus by the phrase "provided by the employer" he must have had in mind some wider construction of those words than they might at first suggest.
16. PRP Architects v Reid [2007] ICR 78 was concerned with an employee getting her hand trapped in a lift which was being used by her to leave her place of work at the end of the day. The lift was used by the employer as tenant and shared with other tenants. The appeal was perhaps complicated by the fact that it had never been argued in the court below that the lift was not "work equipment". Pill LJ said this at paragraph 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."

17. He then set out the competing arguments which reveal the employee's side arguing for a very extensive definition and the employer's side for a narrow one, the employer bringing into the argument a spatial concept. It is instructive just to see how the arguments were put:-

"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. Ultimately Pill LJ recognised that drawing the line was difficult and said this at paragraphs 21, 22 and 23.

"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.

19. Pill LJ also had something to say about control. Pill LJ emphasised that although they had not heard full argument, he was "unable to find that the employers, to any extent, had control over the lift" [see paragraph 32].
20. Smith LJ agreed with Pill LJ's judgment without adding words of her own. Neuberger LJ (as he then was) also agreed with Pill LJ's judgment but in words which might be said to cast some doubt as to whether he was ad idem on the question of control. He said this at paragraphs 40 to 43.

"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 one, 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."

Discussion

21. Mr Preston sought to make something of what he suggested was the circular nature of the definitions in the 1998 Regulations – "use" is defined by reference to "work equipment" and "work equipment" is defined by reference to "use at work". He submitted that one does not get that circularity in the Directive or, in fact, in the 1992 Regulations. I do not myself think that the way the Directive is drafted, or the 1992 Regulations were phrased, was any clearer than the 1998 Regulations. Furthermore, I do not actually accept that the definitions are circular in that under "use" it is activities which are being included, and "working equipment" is defining physical items.
22. It seems to me that if the ramp was work equipment there cannot be any doubt that it was being used and thus that there are two critical questions which may in reality mould into one question– (1) was it work equipment and (2) if so, was it being used "at work". Why I say the questions may mould into one question is that if one asks the question as the judge did – would a ramp of this kind, placed by an employer for use in a factory, be an installation and thus work equipment, there is, I believe, a danger of identifying a false starting point. It may be because of where it is installed, because of who installed it and the reason for which it was installed that provide a clear answer in the case of a ramp in a factory. It does not follow that because a ramp would be "work equipment" if it was installed at a factory, it must be "work equipment" when it is a ramp installed in Mrs Cotter's house and used for many purposes including being used by the Council when they collected her.
23. I also however accept that because the ramp could be work equipment, it is not impossible that it was work equipment in this instance and, what is more, work equipment used by the claimant "at work" at least in the sense of in "the course of her employment". Clearly, if the Council had placed a wooden ramp against the door step for the specific purpose of enabling the claimant to wheel Mrs Cotter to the minibus, that ramp would be an "installation" for use at work and thus "work equipment" used at work by the Claimant.
24. How then is the line to be drawn? I start from this position. Clearly work equipment for which an employer is strictly liable must in some way have been selected by the employer for use by the employee before it can be work equipment for use at work under the regulations. If it were not for the fact that the Regulations clearly cover such equipment "provided for use or used by an employee", there would be force in the argument that "provision" or "making available" would be the right test. But clearly if the employer has allowed the use by an employee of the employee's own equipment strict liability may attach, and thus provision or making available must include simple selection i.e. a consenting to the employee using such equipment.
25. The same, it seems to me, must be the position in relation to equipment supplied by a third party. If the employer has allowed the use at work of equipment supplied by a third party, again that may well have been sufficient selection by the employer and strict liability may well be imposed.
26. The above is reasonably easy to apply to "tools of the trade" as described by May LJ, both so far as their nature is concerned and so far as "at work" is concerned. A power saw taken to lop trees in a customer's garden would appear to be work equipment being used "at work" even if the power saw had been lent by a third party to the employee, provided the employee was acting with his employer's consent.
27. Something which has been "installed" on a permanent or long term basis and which may have many uses seems to me to need different consideration. Whether or not it requires a closer territorial link, as Pill LJ has suggested it might (see paragraph 23) in Reid, or not, I agree that one is dealing with something rather different than with "tools of the trade". Installation at a place of work by the employer may cause no difficulty, e.g. a ramp at a factory used all the time by employees. Even if more difficult, an installation which the employer allows to be used by his employees on a daily basis as a means of departing from or arriving at work and in relation to which under the lease there is a right to insist on repair, e.g. the lift in Reid is covered by the regulations. But an installation put there by some third party, not installed for the particular purpose for which an employer ultimately allows an employee to use it, used most of the time by persons other than employees of the council and in respect of which in the ordinary course of things there was no duty or indeed right to repair or maintain, seems to me to be in a different category. Which side of the line does it fall and how does one test the position?
28. As the judge said quoting from Pill LJ's judgment in Reid paragraph 38 it is unhelpful to redefine what is already the subject of definitions in the regulations. My preferred route for testing the matter is to identify as a starting point what is alleged as the strict liability and ask oneself whether Parliament would have intended that liability to apply in the particular case. There is a temptation to start from the definitions, and then analyse them as if one can do some mathematical calculation and thus provide an answer. But if the answer imposes a liability which it seems improbable that Parliament intended, one must question whether the construction by the mathematical process has got it right. The courier and the bridge example provided by Mr Preston would provide one answer by the process of starting with the definitions and working, what I have termed, mathematically. It would include a broad definition of selection, i.e. the employer instructed the courier to take that route, but I suggest the answer is so extravagant that there must be another process.
29. In this case, what is being alleged is that the employer, the Council, is strictly liable for failing to maintain this ramp in an efficient state or in good repair (or possibly for failing to ensure construction suitable for the purpose). Strict liability should only be imposed by clear language. For someone to have the obligation to maintain something, it would normally have to be within their power to be able to do so without obtaining some one else's consent. The duty to maintain could not normally apply to something which was part of someone else's property. It could furthermore not normally apply to something in relation to which access was limited, and indeed in relation to which, if some maintenance was necessary, consent to carry out the work was necessary. It would not normally apply in a situation in which, if the employer had turned up at the premises to say "I have come to maintain your ramp", they might have got a look of some surprise from the owner who, if anybody, would have expected that person to be the NHS.
30. The same sort of points can be made in relation to construction. This ramp was supplied by the NHS and, certainly until it was used by the Council's employees, no-one could have suggested that the Council had in some way been responsible for constructing it. Even once it was used by Council employees, it would not naturally be said that the Council had in any way constructed the ramp or adapted it for use. Indeed, as I read the judge's judgment, despite Mr Preston's suggestion, I believe the judge was not actually finding a breach of regulation 4(1).
31. My view is that Parliament would not have contemplated that either regulation 4 or 5 should impose strict liability in respect of construction or maintenance on the Council in relation to this ramp. To reach that result requires a sensible construction of the Regulations in the same way as there has to be a sensible construction of the Regulations to exclude Mr Preston's courier/bridge example. It seems to me that both regulation 4 and 5 contemplate some underlying relationship, from which it would be natural to contemplate some responsibility for construction or maintenance or at the least a right to construct or maintain, before the obligation to "ensure" suitability for performance or maintenance would apply. This seems to me to be enforced by Regulation 6 which requires inspection after installation or after assembly at a new site. Strict liability should not flow out of a position in which there was no right and no responsibility to do that thing or insist on the doing of that thing for which strict liability is being imposed. When one weighs up all the factors - where the ramp was installed, who installed it originally, how permanent it was, what it was usually used for, who looked after it in the ordinary way, and how it came to be used by an employee of the Council - one simply does not find anything from which could be spelt out a right over, or the beginnings of a responsibility for, the construction or maintenance of this ramp outside the Regulations.
32. It is said in this instance that the ramp was movable and that the Council chose to use the ramp and, in effect, selected it as work equipment. In my view neither mobility nor choice provides a complete answer. If, when they inspected the ramp, the Council had noticed a lack of repair, their common law duty would have meant they should have asked the NHS or the house owner to allow them to remove the ramp and replace with another. No-one would, I believe, have said to the Council, "We need not change the ramp because you have a right and obligation to maintain it or you are responsible for its construction." Furthermore choosing the ramp does not make it work equipment anymore than choosing to run the wheel-chair across the room makes the carpet, however movable, work equipment. The fact that something used is movable does not make it work equipment and, because an employer allows it to be used, it would not be natural to infer that the choice gave rise to an obligation to maintain it, which heretofore the employer had no right to do and would have no right to do thereafter.
33. I accept that, as I have previously indicated, true "tools of the trade" used by an employee, albeit supplied by a third party, might well give rise to strict liability, despite arguments about the right of an employer to maintain prior to use by the employee or rights to maintain after return to the third party. But that is not the case before us and it is very different from the situation relating to an installation permanently at someone's premises and used for many purposes.
34. Each case will turn on its own facts and require the weighing of all factors. The most significant factors, in my view, in this case are that this ramp was installed by others, it had a permanence, it was used most of its time by people other than the Council's employees, the Council had no ability to "maintain" it, and in ordinary parlance the ramp was part of Mrs Cotter's premises. There was nothing from which anyone could suggest that the council had a right to maintain it or from which anyone would naturally suggest that the Council might have had any responsibility for maintenance over its years of use. Even if use by their employee gave rise to a common law obligation to check it was in good repair, and even if found in bad repair, it would not naturally occur to anyone that lack of repair was because the Council had failed to maintain.
35. There must, in my view, at the very least be factors from which can be spelt out some right (as there was in Reid – see Neuberger LJ's judgment paragraph 41(e)) to carry out maintenance before it is right to impose strict liability for failure.
36. I would accordingly allow the appeal and enter judgment for the Council.

Lord Justice Richards :

37. I agree. In PRP Architects v Reid, at paragraph 39, Neuberger LJ counselled against seeking to lay down general guidance in this area, where the circumstances which can give rise to claims are so multifarious. He suggested that principles must be developed on an incremental, case by case, basis. The instant case supports the good sense of that view, by providing a further illustration of the difficulty of drawing lines. For example, the ramp (whether viewed as a piece of apparatus or an installation – I think it could be either of them) falls outside the scope of the Regulations even though it would probably have come within them if it had been located at the Council's offices or had been provided by the Council to a carer/driver to keep on her minibus for use when necessary in the course of her work, including use at clients' premises. By way of further example, counsel for the Claimant conceded, on the basis of the distinction drawn in PRP Architects at paragraph 14 between work equipment and the structure and condition of premises, that the ramp would have been outside the scope of the Regulations if it had been made of concrete rather than being a moveable wooden ramp.
38. Among the factors underlying what Waller LJ has said about the obligation to maintain is the concept of control, upon which I myself would place particular emphasis in the present context. It seems to me that the absence of any control by the Council over the ramp was a factor militating strongly against its being strictly liable under the Regulations for the construction and maintenance of the ramp. The judge below found that the Council retained a considerable degree of control in that the Council took it upon itself to inspect and assess the ramp. But all that the Council could do, if dissatisfied with the ramp, was request that it be changed and, if it was not changed, refuse to allow its employees to use it. That does not involve any true control over the ramp. Moreover the Council's conduct in carrying out inspections and assessment can be explained by reference to its common law duty of care to ensure that its employees were safe in attending to Mrs Cotter at her home or collecting her from her home. In my judgment it does not provides a proper basis for the imposition of strict liability, through the operation of the Regulations, for the condition of the ramp.

Lord Justice Rimer :
 


39. I too would allow the appeal. If the 1998 Regulations were expressly confined to "work equipment" in the factory, office, hospital, shop, school or like workplaces there would in principle be no difficulty with their operation. The employer would know what "work equipment" he was providing, or was being used, and he would be in a position to discharge his obligations as to its suitability, maintenance and inspection under regulations 4 to 6. But many employees do not work exclusively on site; and the ordinary course of work of a peripatetic employee will commonly require him to take his chance with items of machinery etc which he can fairly be regarding as "using" at work (see regulation 3(2)) but which has not been provided for him by his employer and of the use of which the employer will often be unaware. The difficulty raised by the Regulations lies in the fact that, considered on its own, the definition of "work equipment" in regulations 2(1) and 3(2) is capable of extending to such items of equipment.
40. Take the case of the employee accountant sent by his London firm to audit the accounts of a Yorkshire client. His work is estimated to take a week during which he is given a free run of the client's facilities. By way of a deserved break from the sales ledger he uses the coffee machine which, as a consequence of defective maintenance, ejects scalding water on to him causing him injury. He may well have a claim against the client. But the proposition -- one that Mr Berrisford was, if necessary, willing to espouse -- that in circumstances such as this the coffee machine is "work equipment" within the meaning of the Regulations, with the consequence that the accountant's employer is treated as liable for breaching his own absolute obligations in relation to the suitability, maintenance and inspection of it appears to me to be absurd. Leaving aside the question of the extent to which the Regulations may be said to impute to the employer knowledge of all putative items of "work equipment" used by his peripatetic employees in the course of their travels, in my view the answer to such an absurd consequence is that it is implicit in the Regulations that an item will ordinarily only be capable of constituting "work equipment" if it is one respect of which the employer has a right of control sufficient to enable him to discharge those obligations. The purpose of the Regulations is to impose upon employers the practical task of ensuring that equipment that the employee will be using at work will be safe. The Regulations are directed at prevention of injury and should be interpreted in a practical way. An employer can only be expected to discharge the obligations they impose in relation to equipment which he is, or should be, aware his employee will be using and over which he has the necessary control to enable him to perform them. If he does not have such control, then in my view the equipment will not be "work equipment" for the purposes of the Regulations at all.
41. There will always be cases which fall into a grey area. If, for example, an employee prefers to use his own personal toolkit rather than the one provided by the employer, he would be "using" that equipment at work but it might be said that his toolkit would not strictly be in the control of the employer so as to enable the employer to discharge any safety obligations in respect of it. But I doubt that that would be right. If the employer were aware that the employee was using his own toolkit, I doubt that he could simply allow such use to continue and regard himself as exempt from the Regulations in relation to that toolkit. He would, in principle, be entitled to direct the employee how to perform his work, which would extend to a requirement that the employee should either use the firm's toolkit or else allow the employer to treat the personal toolkit as the employer's for the purposes of the Regulations. I would consider that in such a case the employer would have sufficient control over the personal toolkit for those purposes.
42. Other cases will be more difficult, but I do not regard it is helpful to speculate as to the problems that could arise. The facts of the present case are less extreme than my auditing example. But for the reasons given by Waller and Richards LJJ, I agree that the Council had no control over the ramp sufficient to enable them to perform the obligations imposed by the Regulations in respect of it. It follows that it was not "work equipment" at all.