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Cite as: [2005] CSOH 36, 2005 SCLR 786, [2005] ScotCS CSOH_36

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Lyell v. Sun Microsystems Scotland Bv & Anor [2005] ScotCS CSOH_36 (15 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 36

A1416/02

OPINION OF LORD DRUMMOND YOUNG

in the cause

LEE LYELL

Pursuer;

against

SUN MICROSYSTEMS SCOTLAND BV

Defenders:

and

MANPOWER PLC

Third Party:

________________

Pursuer: Ms Springham; Digby Brown SSC

Defenders: Ms Jack; HBM Sayers

Third Party: Kinroy; Morton Fraser

15 March 2005

[1] The pursuer avers that on 2 June 1999 she suffered an injury at work. She alleges that in the course of her employment with the defenders as a manufacturing assistant she required to test a product known as a server. That required an electrical connection, and the pursuer accordingly plugged the server into a socket. When the pursuer switched on the server, she avers, she sustained an electric shock, which caused her injury. She avers that that injury was caused by the defenders' breach of the statutory duties imposed on them by regulation 5 of the Provision and Use of Work Equipment Regulations 1998 and regulation 4 of the Electricity at Work Regulations 1989. Originally the pursuer alleged fault at common law on the part of the defenders, but I was informed that that case was no longer insisted in.

[2] The defenders have served a third party notice on the third party. They aver that the pursuer was employed not by them but by the third party. The defenders further aver that they concluded a contract with the third party on 7 June 1999 in terms of which the third party undertook to indemnify the defenders from all loss or damage sustained by them in respect of defending a claim such as the claim that is now made by the pursuer; such indemnity extended to any expenses or costs, including legal fees. On that basis they assert that they are entitled to relief from the third party.

[3] When the case called before me in the procedure roll, counsel for the third party challenged the relevancy of the pursuer's averments relating to her employment. Those averments are as follows:

"On or about 2 June 1999 the pursuer was working in the course of her employment with the defenders as a manufacturing assistant. Her duties included assembling and testing servers. ... With reference to the defender's (sic) averments in answer, admitted that the pursuer was employed by Manpower plc. The pursuer was supplied by them to carry out work for the defenders. The defenders controlled the work carried out by the pursuer. She took instructions from the defenders as to the work to be done and the method of working. The defenders had instructed the pursuer in how to assemble servers and carry out testing of them. The pursuer was pro hac vice the employer [sc. employee] of the defenders. The terms of any contract between the defenders and Manpower plc are not known and not admitted".

[4] Counsel for the third party contended that those averments were contradictory. The pursuer averred that she was working in the course of her employment with the defenders, but she also admitted that she was employed by the third party. That of itself rendered the pursuer's case irrelevant, in that it did not specify the party responsible for fulfilling the legal duties incumbent upon her employer. In addition, she averred that while assembling and testing servers she was pro hac vice an employee of the defenders. The doctrine of pro hac vice employment was part of the law of vicarious liability, whereby an employer was liable to an outside party for its employee's acts. That doctrine did not, however, transfer the employment relationship from the general to the temporary employer. Nor did it impose on the temporary employer the duties of the general employer to its employee; those remained with the general employer. That too was a reason for holding the pursuer's case to be irrelevant.

[5] It is convenient to begin by considering the general principles of law that apply in cases where an individual has a contract of employment with one person but, in pursuance of that contract of employment, performs work for another person. Such cases typically fall into one or other of two categories. The first category occurs where the employee has committed a delict against a third party and that third party seeks to hold the person for whom the work is performed liable for the employee's wrongful act; that involves the law of vicarious liability. The second category occurs where the issue is liability to the employee himself, when he has been injured in the course of his work. Those two situations are conceptually distinct. The present case obviously falls into the second category.

[6] The following general principles appear relevant to the present case.

1. The employee's contract of employment is with the general employer, not the person for whom the work is performed. The contract of employment cannot be transferred to that other person without the consent of the employee: Denham v Midland Employers Mutual Assurance Ltd., [1955] 2 QB 437, at 443-444 per Denning LJ; King v Fife Council, 5 December 2003.

2. The general employer's duties of care to provide proper plant, competent fellow-employees and a safe system of working are non-delegable, with the result that the general employer cannot escape those duties by entrusting their performance to another person; if that other person brings about a breach of any of those duties of care, the general employer remains liable: Wilsons & Clyde Coal Company Ltd. v English, 1938 SC (HL) 46. The same is true of statutory duties that are incumbent on the general employer to secure the safety of his employees: Morris v Breaveglen Ltd., [1993] ICR 766.

3. The person who provides the work for the employee may be under duties analogous to those of the general employer, both at common law and under statute. The existence of such duties is likely if the general employer has no control over the place where the employee is working, or the equipment that he uses, or his manner of working: Garrard v AE Southey & Co and Standard Telephones and Cables Ltd., [1952] QB 174; Denham v Midland Employers Mutual Assurance Ltd., supra, per Denning LJ at [1955] QB 444. It is less likely if the employer provides plant and equipment for the employee to use and the employee's claim relates to the adequacy of that plant and equipment or the method of its use.

4. In the case of statutory duties, whether any particular duty is incumbent on the person providing work as well as on the general employer depends on the construction of the statutory provision that creates the duty. Normally, however, if the person providing work supplies the equipment used by the employee or has the power to direct how the work is to be carried out the statutory duty will be the incumbent on him as well as on the general employer: Denham v Midland Employers Mutual Assurance Ltd., supra.

5. The rights inter se of the general employer and the person who provides work will depend on the precise contractual arrangements in force between them. Those arrangements, however, have no bearing on the duties that the general employer owes to his employee. They are only relevant to the duties that the provider of work owes to the employee to the extent that they make the provider of work responsible for such matters as the provision of equipment or the method of working.

[7] The pursuer's claim is based on alleged breaches of two statutory duties, those contained in regulation 5 of the Provision and Use of Work Equipment Regulations 1998 and regulation 4 of the Electricity at Work Regulations 1989. The Provision and Use of Work Equipment Regulations refer throughout to an employer, but regulation 3(3) provides that:

"The requirements imposed by these Regulations on an employer shall also apply --

...

(b)... to a person who has control to any extent of --

(i) work equipment;

(ii) a person at work who uses... work equipment; or

(iii) the way in which work equipment is used at work".

The pursuer avers that the equipment with which the pursuer was working, the server, was work equipment within the meaning of those Regulations. Regulation 5 provides as follows:

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

[8] Regulation 3(1) of the Electricity at Work Regulations 1989 is in the following terms:

"... it shall be the duty of every --

(a) employer and self-employed person to comply with the provisions of these Regulations in so far as they relate to matters which are within his control...".

Regulation 4 states the substantive duty relied on by the pursuer:

"(1) All systems shall at all times be of such construction so as to prevent, so far as is reasonably practicable, danger.

(2) As may be necessary to prevent danger, all systems shall be maintained so as to prevent, so far as is reasonably practicable, such danger.

(3) Every work activity, including operation, use and maintenance of a system and work near a system, shall be carried out in such a manner as not to give rise, so far as is reasonably practicable, to danger".

[9] Regulation 3(3) of the Provision and Use of Work Equipment Regulations applies the requirements imposed on an employer to a number of other persons. These include any person who has control to any extent of work equipment or persons who use work equipment or the way in which work equipment is used. That makes it clear that the duties arising under the Regulations apply not only to the general employer but also to any person who has control of either the work equipment itself or persons who use the work equipment. In the circumstances averred by the pursuer, the duty contained in regulation 5 would accordingly be incumbent on both the defenders, as the person having control over the work equipment and persons using such equipment, and the third party, as the general employer.

[10] The foregoing construction of the Provision and Use of Work Equipment Regulations is based on the wording of regulation 3(3). The application of the Regulations to persons such as the pursuer is supported, however, by the terms of the Temporary Workers Directive, 91/383/EEC, a Council Directive enacted on 25 June 1991. The latter Directive applies, in terms of article 1(2), to "temporary employment relationships between a temporary employment business which is the employer and the worker, where the latter is assigned to work for and under the control of an undertaking and/or establishment making use of his services". That is clearly a description of the relationship among the parties to the present case. In such cases, article 2(3) of the Temporary Workers Directive provides that the Framework Directive, Council Directive 89/391/EEC, and the individual Directives based on that Directive should apply in full to workers who have an employment relationship as referred to in article 1 of the Temporary Workers Directive. One of those individual Directives based on the Framework Directive is the Work Equipment Directive, Council Directive of 30 November 1989, 89/655/EEC. The Provision and Use of Work Equipment Regulations 1998 are intended to implement the Work Equipment Directive. It follows that they must be construed in accordance with the provisions of both the Work Equipment Directive and the Temporary Workers Directive; United Kingdom legislation of this nature must be construed purposively so as to give effect to the results envisaged in the relevant directive: McGhee v Strathclyde Fire Brigade, 2002 SLT 680, at paragraph 8 per Lord Hamilton; Marleasing SA v La Comercial Internacional de Alimentación SA, [1990] ECR 1-4135. Consequently workers whose employment is governed by the type of relationship described in article 1(2) of the Temporary Workers Directive must be treated in the same way as workers who have a straightforward employment relationship with a single employer for whom the worker performs services. That supports the view that the defenders are under exactly the same duties under the 1998 Regulations to workers such as the pursuer as they are to their own direct employees.

[11] The Electricity at Work Regulations provides in regulation 3(1) that the duty of compliance with the Regulations is imposed on an "employer", as well as a self-employed person. The duty only extends, however, to matters that are within the control of a person who can be considered an employer. Although there is no direct averment on the matter, it seems a clear inference from the pursuer's averments that the equipment within the factory where she was working, and in particular the electrical equipment, was under the control of the defenders; they were the persons who controlled the work carried out by the pursuer and who gave her instructions as to the work to be done and the method of working. In addition, it seems clear that they were the occupiers of the factory premises where the pursuer was working, and in that capacity it is likely that they would have control over the electrical equipment used there. It also seems a clear inference from the pursuer's averments that the third party did not have control over the electrical equipment used in the factory; their role was merely that of a supplier of labour to the defenders. If that is so, the third party would not be liable for any breach of the Electricity at Work Regulations, because the element of control that is crucial under regulation 3(1) would be lacking. In the case of the defenders, the element of control is clearly present, and the critical question is accordingly whether they can be considered an "employer" for the purposes of the 1989 Regulations. I was not referred to any decided cases on this matter. I am nevertheless of opinion that the Regulations must be construed purposively, in such a way as to achieve the object for which they were enacted. That object is to ensure the safety of persons who come into contact with electrical equipment in the course of their work. That object would be frustrated in relation to a substantial number of workers if the word "employer" as used in the Regulations were restricted to a general employer, in the sense of a person who has a contract of employment with the worker who makes use of or comes into contact with electrical equipment. If "employer" were so restricted, all temporary employees, and all employees whose services are lent by another person, would fall outwith the scope of the Regulations. In the present case the pursuer's services were provided to the defenders by a supplier of labour who was independent of the defenders, but the same reasoning would apply to a case where a worker was employed by one company in a group but performed services within premises occupied by another company within the same group. In my opinion it is plain that the Regulations must apply to workers whose services are lent by one person to another, at least where the latter person has control over the work done and the method of working. For that reason I am of opinion that the expression "employer" in the Electricity at Work Regulations applies to any person who has control over a worker, in the sense of telling the worker what work he is to do and his method of working. For that reason I am of opinion that in the present case the defenders can, on the pursuer's averments, properly be considered an employer for the purposes of the Regulations. On that basis regulation 4 would apply to the present case.

[12] The pursuer has framed her case on the basis that she was working in the course of her employment with the defenders as a manufacturing assistant. She also states, in response to the defenders' averments, that she was employed by the third party; the relevant averments are set out in paragraph [3] above. In a sense that involves a contradiction, as counsel for the third party pointed out. That view is no doubt strengthened by the consideration that a contract of employment cannot be transferred from one employer to another without the employee's consent, and there is no averment of any such transfer or the giving of such consent in the present case. When the pursuer's pleadings on this matter are considered as a whole, however, I am of opinion that they should properly be construed as an assertion that her general employer was the third party but that she performed the services under her contract of employment at the defenders' factory and on their behalf. The substance of her case is found in the averments that she was supplied by the third party to carry at work for the defenders and that the defenders controlled the work that she carried out. In particular, the pursuer avers that she took instructions from the defenders as to the work to be done and the method of working. She further avers that the defenders had instructed her in how to assemble servers and carry out testing of them. In my view those averments make her fundamental position quite clear.

[13] Such a position does not significantly contradict the averments of the defenders and the third party, who both aver that at the material time the pursuer was employed by the third party. The reference to the pursuer's working in the course of her employment with the defenders could obviously have been more accurately expressed. Nevertheless, in ordinary non-legal language it is common to state that one person is "in employment with" or "employed by" another to denote that he or she performs work for that other, rather than to denote the existence of a contractual relationship of employment between the two parties. Indeed, I have construed regulation 3 of the Electricity at Work Regulations 1989 in that sense, in order to achieve the plain underlying objective of those Regulations. The pursuer's averment that she was working in the course of her employment with the defenders is, of course, of general application, and not confined to the 1989 Regulations. Nevertheless the Scottish system of pleading can tolerate an element of vagueness of this nature provided that the general sense is clear. In my view the general sense of the pursuer's pleadings is quite sufficiently clear.

[14] Counsel for the third party also attacked the pursuer's use of the concept of pro hac vice employment in describing her relationship with the defenders. As counsel pointed out, the expression "pro hac vice" is normally used in the context of the law of vicarious liability rather than the common law and statutory rules that govern the health and safety of persons at work. Nevertheless, the expression is a well-known legal term. In Trayner's Latin Maxims, its literal meaning is given as "for this turn", and its more precise legal definition is stated as "for this occasion or service; for the discharge of this duty or office". An example is given that relates to the service of a summons, an area that is plainly removed from the field of vicarious liability. That entry makes it clear that the expression "pro hac vice" is one that is capable of general use, and is not confined to the particular context of vicarious liability. It is accordingly an expression that is capable of denoting any form of limited or temporary employment. In the circumstances of the present case, I am of opinion that the expression is intended to signify that the pursuer was performing work for the defenders under their direction, and that in consequence the defenders had assumed certain duties analogous to those incumbent upon an employer. Duties of that nature are well recognised by the law, as appears from the authorities cited in paragraph [6] above. That applies in particular to statutory duties that are incumbent on the defenders to secure the health and safety of persons working in their factory. The statutory duties founded on by the pursuer plainly fall into that category. Moreover, the pursuer's averment of pro hac vice employment is preceded by a series of averments to the effect that the defenders controlled the work carried out by her and that she took instructions from them as to the work to be done and method of working. In those circumstances the meaning of the expression does not appear in doubt.

[15] That is sufficient for me to hold that the pursuer has stated a relevant case against the defenders, which is the only matter that was in issue. I should, however, notice certain aspects of counsel's arguments.

[16] Counsel for the third party founded on a number of cases in support of his argument, and subjected these to detailed analysis. He relied in particular on Morris v Breaveglen Ltd., supra, a case in which the plaintiff, a building site worker, was employed by the defendants but his services were supplied to another building company for work on a particular project. While working on that project, he volunteered to drive a dumper truck. An accident resulted and the plaintiff suffered injuries. He brought an action against the defendants for damages based on negligence at common law and breach of certain statutory duties applicable to the construction industry. It was held by the Court of Appeal that the defendants, as the plaintiff's general employers, remained liable under their contract of employment with the plaintiff to take reasonable care to ensure a safe system of work. That was so notwithstanding that his services had been provided to another person. So far as the statutory case was concerned, it was held that the plaintiff's use of the dumper truck was within the scope of the work that he was employed to perform, and that consequently the defendants must be regarded as using the truck. They were therefore liable to the plaintiff for the breach of the relevant regulations. The main opinion was delivered by Beldam LJ, who conducted a thorough review of the authorities in this area of law. That review is, I hope, reflected in the brief summary at paragraph [6] above. The critical point so far as the common law case was concerned is that the duty owed by an employer to an employee to provide a safe system of work is non-delegable, a point that was of course established in Scotland in Wilsons & Clyde Coal Co. Ltd. v English, supra. So far as the statutory case was concerned, it is clear that the approach taken by Beldam LJ was based on the wording of the particular regulation in question. That regulation referred to the use of vehicles, and the issue that arose was whether, when the plaintiff was driving the vehicle on the instructions of the contractor to whom he had been lent, the defendants could be said to be using the vehicle. It is held that the defendants were indeed using the vehicle, through the plaintiff. While this case provides a very valuable review of the law, I do not think that it is in any way determinative of the present case. In particular, it was concerned with the non-delegable nature of an employer's duties; the present case, by contrast, is concerned with the different question of whether the person to whom an employee has been lent is under duties towards that employee. It is concerned in particular with two statutory duties. As I have indicated above, I think that this is a matter that must turn on the construction of the statutory provisions in question.

[17] Counsel for the third party also referred to Nelhams v Sandells Maintenance Ltd., [1996] PIQR P52, as authority for the proposition that coextensive duties can be owed to a worker both by his or her employer and by the person who has control of the work that is being carried out, if different from the employer. That is clearly correct, but I do not think that it helps in the circumstances of the present case; the issue here is the relevancy of the statutory case that the pursuer has made against the defenders, and the fact that the third party may also owe common law and statutory duties does not detract from the defenders' own obligations. Counsel also cited Johnson v Coventry Churchill International Ltd., [1992] 3 All ER 14. In that case the plaintiff was employed by the defendants, who provided his services to a West German building company. It was held that the defendants continued to owe the plaintiff the common law duty to take reasonable care to provide a safe system of work, including safe means of getting to and from the plaintiff's immediate place of work. Once again, I do not think that this case helps the third party; it merely illustrates the fact that certain of the employer's common law duties are non-delegable.

[18] It became clear during the course of the procedure roll discussion that the main concern of the third party related to the scope of the indemnity that it had provided to the defenders. I was informed that the contract between the defenders and the third party provided that, in the event that a worker claimed in court proceedings to be an employee of the defenders, the third party would indemnify the defenders for any liability imposed upon the defenders in such proceedings. The third party was accordingly anxious to exclude the allegation by the pursuer that she was in the employment of the defenders, because it was feared that that would bring the indemnity into operation. In my opinion this concern is plainly not sufficient to hold the pursuer's case against the defenders to be irrelevant. Indeed, as indicated in paragraph [6] above, the terms of the contract between the defenders and the third party only have a bearing on the duties that the defenders owe to the pursuer to the extent that they make the defenders responsible for such matters as the provision of equipment or method of working. Moreover, the scope of the third party's indemnity to the defenders is a matter that arises between those two parties, and will turn on the construction of the agreement that they have concluded. The pursuer's use of expressions such as "working in the course of her employment with the defenders" in her pleadings has no bearing on whether her claim falls within the scope of the indemnity, for two reasons. First, in relation to the indemnity given by the third party to the defenders, the pursuer's precise formulation of her claim is res inter alios acta, and cannot be conclusively binding on the defenders and third party in an issue arising between themselves. Secondly, the question of whether a claim made by an employee falls within the scope of the indemnity must depend upon the substance of the claim, and in particular whether as a matter of substance the claim involves an allegation of employment by the defenders. The precise formulation used by an employee in his or her pleadings does not determine that matter. A proper examination of the substance of the claim will normally only be possible following a proof in which both the defenders and the third party are represented. Indeed, in the present case, for the reasons discussed above I am of opinion that the proper construction of the pursuer's pleadings is not that she was employed by the defenders but that she was owed certain statutory duties by them. That construction of the pleadings obviously cannot bind the defenders, because they have not been represented in the argument before me. If, however, it is held following proof that that is the true substance of the pursuer's claim, it is that construction of the claim that will be relevant to the application of the indemnity.

[19] For the reasons stated above, I am of opinion that the pursuer has stated a relevant case against the defenders based on the Provision and Use of Work Equipment Regulations 1998 and the Electricity and Work Regulations 1989. I will accordingly refuse the third party's motion for dismissal, and allow the action to proceed to proof before answer.