England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
MR RECORDER HOPMEIER
6WT01688

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2009

Lady Justice Smith:

Introduction

1. This is an appeal from the order of Mr Recorder Hopmeier sitting in the Wandsworth County Court on 20 June 2008. He dismissed the appellant's claim for damages for personal injuries sustained on 3 May 2003 when the tipper lorry he was driving overturned while he was leaving the M1 Motorway at Junction 6. It was common ground that the vehicle overturned because it was going too fast. It was the appellant's case that he was going too fast because he had been unable to move his right foot from the accelerator to the brake. That was because a piece of angle iron used by him as a makeshift tool which he kept in the side pocket of the driver's door had caught in his trouser leg. The angle iron projected upwards beyond the edge of the side pocket. He blamed his employers for this accident because, he said, they had not provided a suitable place in which he could safely keep this makeshift tool.
2. The respondent's primary case was that the accident had happened simply because the appellant was driving too fast and that it had not been caused by any makeshift tool catching his trouser leg. However, in the end, the recorder accepted the appellant's case as to the happening of the accident. Thus the claim turned on whether the appellant could prove that the respondent employer had been in breach of duty in respect of the storage of the makeshift tool in the pocket of the driver's door. The recorder held that there was no breach of duty and dismissed the claim. I granted the appellant permission to appeal on one ground only, that it was arguable that the recorder had erred in his approach to the Provision and Use of Work Equipment Regulations 1998 on which the appellant relied.

The facts

3. At the material time, the appellant had been employed by the respondent for between 18 months and two years. He drove a Volvo tipper lorry. The respondent had a contract for the removal of spoil from the Wembley Stadium construction site. Each day, the appellant would move several loads of spoil from Wembley to a dump not far from Junction 6. The respondent provided various items of equipment for the use of their drivers. These included a shovel for cleaning out any spoil which remained in the truck after the bulk had been tipped out.
4. It was the appellant's case that, in addition to the shovel, the drivers needed a smaller, sharper tool for a variety of tasks, such as scraping in the corners of the truck, removing mud from the locking mechanism, from the tyres before driving on public roads and from their boots before getting into the cab. The appellant said that, for all these purposes, he used a piece of angle iron. This was scrap metal which he had picked up from the Wembley site. It was 16 to 18 inches long and was L-shaped. He kept it in the pocket of the driver's door because, he said, there was nowhere else suitable in the Volvo lorry. In particular, there was no toolbox. Although the appellant's statement implied that he had been using this makeshift tool (and keeping it in the door pocket) for a considerable period of time, he did not specify when he had begun to use it and it appears that he was not asked about that in his oral evidence.
5. The appellant also said that, for these scraping tasks, some drivers used an old paint or wallpaper scraper; others used a small trowel. In general, they kept these small items in the driver's door pocket. On the pleadings, the respondent's case was that a scraping tool was not necessary and its managers or supervisors were unaware that the men used such tools. However, in evidence Mr Hennessy, the respondent's health and safety director, conceded that he was aware that many of the drivers used paint scrapers or trowels. He was also aware that they were kept in the door pocket. However, he said that he had never seen a driver use a piece of angle iron and he had no idea that the appellant did this or that he kept it in the door pocket. He said that the lorries were inspected regularly. Had he known that the appellant was keeping a piece of angle iron in the pocket, he would have stopped him as he would have regarded the practice as dangerous. He thought that this item could have been safely stored in the foot well on the passenger side. Alternatively, he thought it could even have been safely kept in the door pocket provided that the longer limb of the L was pointing towards the rear of the vehicle. It appears that the appellant positioned it the other way round.
6. The appellant said that, about a month before his accident, an incident had occurred in which the angle iron had caught in his trouser leg and he had been unable to move his foot from the accelerator. It appears that he extricated himself on that occasion without much difficulty. He did not report that event to the respondent. Nor did he alter his practice of keeping the angle iron in the door pocket.

The judgment

7. When directing himself as to the law, the recorder dealt first with regulation 4 of the Provision and Use of Work Equipment Regulations 1998. Regulation 4 provides:

"(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."

8. Regulation 2 (headed Interpretation) provides at 2(i) that:

"'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;"

9. Regulation 3 (headed Application) provides at 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." (emphasis added)

10. The recorder accepted that the angle iron was a tool and that it fell within the definition of work equipment. The respondent had not provided it but, even so, regulation 4 would apply if it was 'used' by an employee at work. At that stage, the recorder cited a passage from Mason v Satelcom Ltd and others [2007] EWHC 2540. In that case, the appellant went out to work at different sites. Sometimes he needed a ladder. The respondent did not provide a ladder but left the appellant to use whatever was available on the particular site. On the material occasion, the appellant fell from the ladder because it was unsuitable; it was too short. His Honour Judge Reddihough, sitting as a deputy High Court judge said, at paragraph 52 of his judgment:

"The fact that the defendants chose to leave the claimant to use his initiative to select his means of access to equipment he had to work upon and to choose or obtain work equipment for himself cannot, in my judgment, absolve the defendants of the consequences of their breaches of the regulations and cannot provide any basis for concluding that those breaches were not causative of the claimant's accident."

11. The recorder also directed himself as to the extended meaning of the word 'use' and was prepared to assume (although in some doubt) that 'using' the tool included transporting it and that therefore storing it in the door pocket could amount to using it.
12. At paragraph 29 of his judgment the recorder said:

"The question, it seems to me, that arises in the present case is whether it was reasonably foreseeable to the defendants that the claimant would choose a type of angle iron as the claimant did: whether it was reasonably required; and perhaps most importantly, whether it was reasonably foreseeable that he, the claimant, would store it in the driver's pocket in the way that it was stored."

13. At paragraph 30, the recorder considered the meaning of 'suitability' and referred to regulation 4(4). He then said:

"That was an absolute and continuing duty that extended to every aspect related to their work. In that context the issue of foreseeability became relevant. The obligation was to anticipate situations that might give rise to accident. An employer was not permitted to wait for accidents to happen. That approach was underlined by regulation 4(2) which required that a risk assessment be carried out before work equipment was used by or provided for persons whose health and safety could be at risk."

14. The recorder then made his findings of fact. He accepted that the accident had happened as the result of the angle iron being caught in the appellant's trouser leg. He accepted that there had been a similar incident previously but that the respondent had not been told about it. He accepted that most of the drivers used small scraping tools but, rather surprisingly in view of their widespread use, held that a scraper was not a reasonably necessary piece of equipment. He found that the respondent was not aware of the particular type of tool (the angle iron) used by the appellant. He found that there had been 'adequate' checks of lorries which had not revealed the use of this kind of angle iron scraper. He did not say how frequently such inspections were carried out or what they consisted of; he simply found that they were adequate. He found that none of the drivers had complained about the lack of a tool box. In any event, a toolbox was not required for the safe transport of such scrapers as the respondent was aware of. Finally, he found that the angle iron could have been safely stored for transport in the foot well on the passenger side.
15. At paragraph 36, the recorder commenced his conclusions. It is clear from the context that he first applied his mind to regulation 4, although he did not say that he was about to do so. He plainly intended to hold that the regulation did not impose liability on the respondent. He said:

"(1) that it was not reasonably foreseeable that the claimant would use this type of angle iron; (2) even if it was, it was not reasonably foreseeable to the defendant that the claimant would store this angle iron in the place and position in which it was placed, in particular in circumstances where there was, in my judgment, a perfectly safe place to store the angle iron had the claimant chosen to do so, namely certainly in the passenger footwell and probably if the angle iron had been stored facing the rear of the vehicle."

16. At paragraph 37, the recorder considered regulation 9 (headed Training) which provides:

"(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. "

He rejected the appellant's submission that there was a breach of this regulation saying:

"As for training, Regulation 9, even if the transportation in the cab of an angle iron can be construed as amounting to 'use' within the meaning of Regulation 9, I accept the submission that there was no duty to give the claimant 'training' on the facts of this case as to storage of an angle iron. The claimant knew it was his responsibility to keep the cab safe, and in my judgment training for such was not required. There is nothing to suggest that the claimant was not adequately 'trained' through his long experience as a lorry driver and in working with the defendants, in so far as any training was required as to what could be safely placed in the driver's door pocket and how it should be placed."

17. The recorder dismissed several other allegations of statutory and common law breach of duty. These included an allegation that the respondent had been in breach of its duty to carry out a risk assessment pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999. There had been no formal risk assessment. The recorder noted that a breach of that regulation did not impose civil liability. (In fact that was correct at the time of this accident but the exclusion of liability was removed by amendment in October 2003). The recorder held that, on the facts, that there was 'no need for a particular formal risk assessment'. No issues arise as to that holding on this appeal. Finally, the recorder held that, if he were wrong about primary liability, he would have held the appellant to have contributed to his injuries by his own negligence to the extent of 75%.

The appeal to this Court

18. I granted permission to appeal on one ground only. Another ground, relating to the recorder's holding on risk assessment was refused and not renewed. The permitted ground was that the recorder 'had erred in law by finding that the Provision and Use of Work Equipment Regulations 1998 did not apply and accordingly there could be no breach thereof.' Mr Angus Withington, who appeared for the respondent here and below, took a preliminary point on the Notice of Appeal. I mention it now to put it out of the way. He submitted that this ground of appeal was misconceived because the recorder had expressly held that the regulations did apply. When I read the recorder's judgment, I found it difficult to ascertain whether he had held that the regulations applied but that there had been no breach or whether he had held that they did not apply to the particular facts of this case. I granted permission because it seemed to me arguable that the recorder's approach to the regulations had been wrong. Mr Withington accepted that, on receiving the appellant's skeleton argument, he understood exactly how the case was being put and had not been prejudiced by the way in which the ground had been drafted. I have no doubt that we should deal with this ground of appeal as meaning that the recorder was wrong to find that there was no liability under the regulations.
19. Mr Simon Perhar, who appeared for the appellant here and below, submitted that, on the facts as found, the recorder should have held that there was a breach of regulation 4 and that it had been causative of the accident. He submitted that it had been established that the appellant was in fact using the angle iron and transporting it in the driver's door pocket. That practice amounted to the use of work equipment. That being so, if it was reasonably foreseeable that that practice might affect the appellant's health and safety (see regulation 4(4)), the practice or use was not 'suitable' and there was a breach of the strict liability under regulation 4.
20. Mr Perhar accepted that the recorder had found that the respondent did not know that the employee was using the angle iron and storing it in the driver's door pocket. But he submitted that that was irrelevant. If knowledge was relevant, the employer was aware that drivers generally used scrapers and stored them in the door. They should have realised that some drivers might use something different and have found out what was in fact happening. It was also irrelevant that the recorder had said that the respondent could not reasonably have foreseen that the appellant would use an angle iron and store it as he did. It was enough that the appellant had established that he was in fact using the angle iron and storing it in the door. Regulations 3 and 4 said nothing about the employer knowing or foreseeing that a particular tool was being used or being used in a particular way. For the purposes of this provision of strict liability, the employer must be taken to be aware of what is in fact going on. Further, the recorder had erred in considering whether it was reasonably foreseeable that the appellant would store an angle iron as he did. The only respect in which reasonable foresight was relevant to regulation 4 was as to the risk to health or safety arising from the particular usage or practice: see 4(4). Here, it was not disputed that storing the angle iron as the appellant had been doing created a foreseeable risk of injury.
21. Mr Perhar submitted that there had also been breaches of regulations 8 and 9. The recorder dealt with Regulation 8 very shortly and held that there was no liability under it. It is perhaps understandable that the recorder took this approach as it is closely related to regulation 9, which he dealt with I greater detail, see my paragraph 16 above. Regulation 8 is headed 'Information and instructions' and provides:

"(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment."

22. Mr Perhar's submission was that the employer should not have left it to the drivers to select what they wanted to use as a scraper. The men should have been given instructions and training. He submitted that it was not sufficient to say that instructions and training were adequate if they dealt with risks that the employer knew about. That would impose a duty no higher than at common law whereas the regulations impose a higher duty, namely to investigate the risks inherent in their operations: see Allison v London Underground Ltd [2008] EWCA Civ 71.
23. Mr Withington sought, on paper, to support the recorder's holdings and reasoning but, in oral argument, he wisely focussed on his additional grounds, as set out in his respondent's notice, for upholding the decision. Although in his skeleton argument, he submitted that the recorder had been wrong to hold that the storage of the angle iron in the door could amount to use, in oral argument he accepted that that was the correct conclusion. He also accepted that the regulations would bite even where the employer had not provided the item of equipment but only if it was being used to the employer's knowledge. He acknowledged that, on its face, regulation 3(2) spoke only of the equipment being 'used' and said nothing about it being used to the employer's knowledge. But, he submitted, there were two authorities which supported his submission that knowledge of the use was essential to liability. These were Spencer–Franks v Kellogg Brown & Root Ltd [2008] UKHL 46, [2009] 1 All ER 269 and Smith v Northamptonshire County Council [2008] EWCA Civ 181, [2008] 3 All ER 1054. He submitted that the test should be whether the employer knew or ought to have known of the use and permitted or condoned it. If he ought to have known, he would be deemed to have known of it and permitted it and the regulations would bite.
24. Further, Mr Withington submitted that, if that were the test, the necessary findings of fact were not here available for the appellant to succeed. First, the recorder had held that the respondent did not in fact know that the appellant was using the angle iron and transporting it in the door pocket. That finding had not been and could not be challenged. Second, the appellant could not argue that, on the facts as found, the recorder should have held that the respondent ought to have known that the appellant was using the angle iron and how he was transporting it. The appellant had given no evidence as to how long he had been using the angle iron. The recorder had accepted that he was using it on the day of the accident and had been using it when a similar trouser-catching incident had occurred about a month earlier. But as to any period earlier than that, there was no evidence at all. So, there was no finding of fact as to how long the practice had been going on. Further, there was a finding of fact that the respondent carried out adequate inspections of the lorries. True, the recorder had not said what he meant by 'adequate'; nor had he said how frequently they were carried out but there was no appeal against the bare finding that the inspections were adequate. So, there was no material on which the recorder could or should have held that the practice had been going on for so long that, if the employer had been carrying out adequate inspections, it would have become aware of what was happening.
25. In reply, Mr Perhar submitted that once the appellant had established that he had been using the angle iron (and transporting it in the door pocket), the regulations bit. The onus was on the employer to find out that it was being so used and to comply with the regulations.

Discussion

26. It is necessary to examine the authorities to which we were referred by Mr Withington to see whether they support his submission that, in a case where the employer has not provided the equipment, regulation 4 bites only where the employer knows or ought to know that the employee is using the equipment in question at work and/or, if relevant, that he is using it in a particular way.
27. I refer first to Smith v Northamptonshire CC. There, the claimant was a Council care worker who had to collect disabled clients from their homes and take them to a care centre. She was injured when she stepped on a wheelchair ramp at a client's home and it collapsed because it was rotten. The ramp had been provided by the NHS, not by the employer. The judge held that the ramp was work equipment within regulation 4 and that there was strict liability on the employer. On appeal, the Court (Waller, Richards and Rimer LJJ) held that, although the Council knew about the ramp (and had actually inspected it) and knew that the appellant was using it at work, regulation 4 did not apply because the Council did not have the degree of control over the ramp which was (implicitly) necessary for liability. When discussing the scope of regulation 4, Waller LJ said:

"24…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 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."

28. Rimer LJ said:

"40. 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."

29. That authority is binding on us and, in any event, I respectfully agree with it. On the facts of that case, there was no doubt that the employer knew that the employee used the ramp at work. The ratio of the decision is that the employer must also have a sufficient degree of control over the work equipment in order to justify the imposition of strict liability. However, it is clear that, before he can have control, he must know that the work equipment is being used.
30. In Spencer-Franks, a Scottish case, the pursuer was injured while repairing a door closer; a screw came out and the linkage arm struck him in the face. The issue was whether the door closer was work equipment that the pursuer was using at work. The House of Lords held that it was. When considering whether the door closer was 'work equipment' at paragraph 51, Lord Rodger of Earlsferry observed that work equipment could cover a very wide variety of items, anything which was there to perform a useful practical function in relation to the purposes of the undertaking. They might include 'clocks to let the employees know the time, radios for them listen to music while they work, kettles for them to make tea or coffee and water-coolers at which they can drink and gossip'. He continued:

"All these will constitute work equipment – as indeed will, say, screwdrivers or radios of their own which employees are allowed to bring in and use at work."

31. That last example includes a glancing reference to the need for the employee to be allowed to use the item at work if it is to be 'work equipment'. Of course, nothing turned on that point in the Spencer-Franks case but, as Mr Withington submitted, there is a clear indication that Lord Rodger thought that, when showing that an item was work equipment, it would not be enough for an appellant to show that he was using it; he would have to show that his employer permitted its use.
32. As a matter of construction and in the light of those authorities, I would reject Mr Perhar's submission that, if an item of equipment not supplied by the employer is in fact being used at work, the regulations apply and strict liability attaches to the employer, even if he did not know and could not have been expected to know that it was being used.
33. As to construction, the 1998 regulations were passed to ensure compliance with European Council Directive 89/655. That directive laid down minimum safety and health requirements for the use of work equipment by workers at work. The basic requirement, set out in Article 3, is for the employer to take the measures necessary to ensure that work equipment made available to workers in the undertaking is suitable for the work to be carried out and may be used without impairment to their safety or health. The directive does not cover equipment which is being used at work which has not been 'made available' to the workers. However, by applying the regulations to 'equipment provided for use or used by an employee .. at work' (my italics), Parliament extended the scope of the regulations to items of equipment which the worker himself had provided and used. I do not think it conceivable that Parliament could have intended to impose strict liability on an employer in respect of an item of equipment about which he did not know and could not reasonably have been expected to know.
34. In my view, if an item of equipment which has not been supplied by the employer is being used at work, it will not be 'work equipment' for the purposes of the 1998 regulations unless the employer expressly or impliedly permitted its use or must be deemed to have permitted its use. That formulation of the test would accord with Smith v Northants CC and Spencer-Franks.
35. Express permission will be a matter for direct evidence. Implicit permission may be inferred from evidence that the respondent was aware that the item was being used and did nothing to stop it. It seems to me that the facts of Mason v Satelcom, which the recorder cited, are an example of implicit permission. The respondent knew that the appellant might well have to use a ladder to gain access to what he had to do but he left it to the appellant to find and use whatever ladder was available. In those circumstances, the respondent implicitly permitted the appellant to use whichever ladder he chose. If it was unsuitable in that it carried a risk to health or safety, there would be strict liability. Deemed permission will be inferred where the employer ought to have realised that an item was being used but apparently did not and therefore did nothing to stop it.
36. Applying that test to the facts of the present case, it is clear that, although the recorder did not formulate the test quite correctly, he reached the right answer and the appeal cannot succeed.
37. The recorder's reasoning seems to have been that the angle iron was work equipment being used at work and was therefore within the regulations. But at paragraphs 29, 30 and 36 of his judgment (see my paragraphs 12, 13 and 15 above), he posed what he saw as the essential question in terms of reasonable foreseeability. He held that the respondent did not know and could not have reasonably foreseen that the appellant would use the angle iron and store it as he did. Therefore there was no liability. He did not ask himself whether a tool which the employer had not provided and the use of which he had not permitted could be work equipment within the regulations. I can see why the recorder posed the test in terms of reasonable foreseeability. He had considered the facts of Mason v Satelcom. I think he must have rationalised that decision on the basis that the employer was liable because he ought to have foreseen that his employee might use an unsuitable ladder. However, in my view, the true reasoning is that the ladder used was work equipment because the employer gave implicit permission for him to use whatever was available.
38. If the recorder had asked himself whether or not the respondent had permitted the use of the angle iron or must be deemed to have done, he would, on the limited evidence available to him, have reached the conclusion that it had not. He would therefore have held that the angle iron was not work equipment to which the regulations applied. He found as a fact that the respondent did not know that the appellant was using the angle iron or was transporting it in the door pocket. That means that the respondent could not have either expressly or impliedly given permission for him so to use it. Had the recorder then asked whether the respondent should be deemed to have given permission, he must have held that, on the evidence, it was not. First, it was not clear for how long the appellant had been using the angle iron; he had been using it for a month but whether longer than that was not clear. Nor was there any evidence as to whether the use had been open or concealed. The recorder found that the lorry inspections were adequate (which implies a sufficient degree of frequency and thoroughness). On the evidence, the recorder would have been bound to hold that there had been no deemed permission.
39. If there had been evidence of use, openly, for a significant time, the recorder could have found that a reasonable system of inspection would have discovered it. If it had not been discovered, the employer might well have been deemed to have permitted it. But that was not the evidence here.
40. I would hold that, on a true analysis of the meaning and scope of regulation 3(2), these regulations did not apply to the use of this angle iron because the employer had not permitted its use. Accordingly, regulation 4 did not apply and there was no duty to give instructions or training in respect of the use or storage of the angle iron.
41. As for regulations 8 and 9, they did not impose any duty to give instructions or training about the use or storage of this angle iron. In so far as Mr Perhar's submissions extended to the giving of instructions or training about the use of work equipment generally (what to use for which tasks), I would dismiss the appeal because the recorder found that a scraper of any kind was not a reasonably necessary item of equipment. There cannot be a duty to provide instructions on how to do something which is not reasonably necessary.
42. Accordingly, for those reasons, I would dismiss this appeal.

Lord Justice Wilson : I agree.

The President of the Family Division : I also agree.