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Cite as: [2007] CSIH 23, [2007] ScotCS CSIH_23, 2007 SC 469

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Johnston

Lord Marnoch

[2007] CSIH 23

XA33/06

OPINION OF THE LORD JUSTICE CLERK

In the Appeal

PETER SPENCER-FRANKS

Pursuer and Appellant;

against

KELLOGG BROWN AND ROOT LIMITED AND OTHERS

Defenders and Respondents:

_______

For appellant: Macdonald; Drummond Miller, WS (for Lefevre Litigation, Aberdeen)

For respondents: R Dunlop; HBM Sayers

29 March 2007

[1] I gratefully refer to Lord Johnston's exposition of the background to this case and the issues that it raises. I agree with him and with Lord Marnoch that this action is irrelevant in relation to both defenders.

[2 ] In my opinion, the determining issue in both the appeal and the cross-appeal is whether the door closer on which the pursuer was working at the time of the accident was "work equipment" within the meaning of that expression in Regulation 2(1) of the Provision and Use of Work Equipment Regulations 1998 (SI No 2306), as amended (the Regulations).

[3 ] The pursuer avers that he was engaged in repairing the door closer in the course of his work as a mechanical technician and that he attempted to prise off the linkage arm with a screwdriver. Counsel for the pursuer submitted that the pursuer was at work at that time and that, since he used the doorway while at work, the door closer was an apparatus or appliance for use at work. It was therefore work equipment (reg 2(1), sv "work equipment" and "use"). Counsel put the point in another way by suggesting that the door closer was a part of the overall installation constituted by the oil platform itself and on that account too was work equipment. He drew an analogy between the door closer and the bunk ladder that was treated as being work equipment in Robb v Salamis (M & I) Ltd (2005 SLT 523; revd, 2006 UKHL 56).

[4] In my opinion, the term "work equipment" relates to items of the kind specified in the definition in regulation 2(1) which the employee has for the purpose of doing his work. The argument for the pursuer is in substance the unsuccessful argument for the plaintiff in Hammond v Commissioner of Police for the Metropolis ([2004] ICR 1467, at para 22) to the effect that the Regulations cover injuries arising from any defect in equipment in the workplace. If that argument were sound, the employer of a mechanic who changes a tyre on a car would be strictly liable if the mechanic were to be injured by a defect in the car. I agree entirely with the reasons for which the Court of Appeal concluded in that case that the 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" (May LJ at para 25). That interpretation emerges readily from the wording of the Regulations and it leads, in my view, to a sensible result.

[5] The bunk ladder with which the court was concerned in Robb v Salamis (M & I) Ltd (supra) is not a good analogy. The ladder in that case provided access to and from the pursuer's bunk on board an oil platform. It gave way when the pursuer was descending from his bunk. Before the Inner House, the defenders came to accept that the ladder could constitute work equipment (2005 SLT 523, at p 531K). The appeal to the House of Lords was conducted on the assumptions that the appellant was at work at the relevant time and that the ladder was work equipment, assumptions that were said to be "entirely justified" ([2006] UKHL 56, at para 11). On the assumption that the ladder in that case was work equipment, I consider that there is nevertheless a material distinction between an item of that kind, which could be regarded as being part of the overall installation constituting the workplace, and what Lord Penrose has described as "a work piece on which work equipment [is] to be used" (Robb v Salamis (M & I) Ltd, supra, 2005 SLT 523, at p 531H-I; cf PRP Architects v Reid [2007] ICR 78, Pill LJ at para 19), which is essentially the nature of the door closer in this case.

[6] In my opinion, the true analogy in this case is with the wheel bolt on which the plaintiff was working in Hammond v Commissioner of Police of the Metropolis (supra). In this case, in my view, it was the pursuer's screwdriver and not the door closer that was the work equipment.

[7 ] Even on the hypothesis that the door closer was work equipment, this action would nonetheless fail, in my opinion, because at the time of the accident the pursuer was not "using" it as work equipment in the sense contemplated by Regulations 2 and 4 (cf Hammond v Commissioner of Police of the Metropolis, supra, May LJ at para 25(e)).

[8 ] The discussion in this case brought out several problems of interpretation to which the obscurity of these regulations may give rise. Your Lordships have referred to certain difficulties that may arise in connection with the definition of "use" in matters of repair and maintenance. But on the straightforward facts of this case, such difficulties need not, I think, be explored. Assuming that the door closer was work equipment, I consider that the pursuer was "using" the equipment with which he was effecting the repair but not the equipment that he was repairing.

[9 ] For these reasons, I consider that the action is irrelevant against both defenders. On that view, the sheriff reached the right result in his decision on the case against the second defenders, although by erroneous reasoning; but erred in his decision on the case against the second defenders.

[10 ] I propose to your Lordships that we should refuse the appeal; allow the cross-appeal, and dismiss the action.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Johnston

Lord Marnoch

[2007] CSIH 23

XA33/06

OPINION OF LORD JOHNSTON

APPEAL

PETER SPENCER-FRANKS

Pursuer and Appellant;

against

KELLOGG BROWN AND ROOT LIMITED AND OTHERS

Defenders and Respondents:

_______

Act: Macdonald; Drummond Miller, W.S. (for Lefevre Litigation, Aberdeen) (Pursuer and Appellant)

Alt: R Dunlop; HBM Sayers (Defenders and Respondents)

29 March 2007

[10 ] This is an appeal from the Sheriff at Aberdeen in respect of an action of reparation consequent upon the appellant sustaining an injury on 12 October 2003 while being employed by the first defenders as a mechanical technician on the Tartan Alpha Platform in the Scottish sector of the North Sea. The second defenders were the owners and operators of that Platform.

[11 ] The relevant averments of fact made by the pursuer are as follows.

"On that day one of the jobs which the Pursuer had to carry out was inspect and repair the door closer on the central control room door. This is a very busy door, with people going in and out of the control room all the time. This was because the door closer was not closing the door properly. The Pursuer wedged the door open enough to allow people to pass through. He inspected the door closer. The door closer was not working. The Pursuer decided that he would need to take the closer off of the door and take it to the workshop where he could try to repair the closer. The Pursuer stood on a small portable stand so that he could reach the door closer. He wanted to assess the level of tension in the arm. In order to do this he tried to release the tension by pushing the arm of the closer. He required to back off the screw which held the arm by about one half turn so that he could assess the tension. When this screw is screwed fully home, it normally requires three or four complete turns in order to disengage it. The Pursuer was not intending to remove the closer arm at that stage. He just intended to look at it at that stage. As he did so the screw holding the arm in place pulled out. The arm of the door closer struck the Pursuer in the face".

[12 ] The pursuer makes his case under the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306, as amended) ("The Regulations") which in turn replaced similar Regulations of 1992. Both sets of Regulations were the offspring of the Council Directive 89/655/EEC, as amended, article 3 of which contains the following provisions under the heading "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 proposes 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 minimise the risks."

I turn now to the relevant terms of the Regulations.

[13 ] Regulation 2(1) inter alia, provides:

"2(1) In these Regulations, unless the context otherwise requires - ...

'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)."

[14 ] Regulation 3 inter alia provides:

"(3) 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 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".

[15 ] Regulation 4(2), (3) and (4) provides, inter alia:

"4(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 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' -

(a) ... means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person ..."

[16 ] Regulation 5 provides inter alia:

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

[17 ] The pursuers' pleadings also make reference to Regulation 22 which is, as far as relevant, in the following terms:

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

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

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

[18 ] The cases made respectively by the pursuer against the defenders proceed broadly upon the same terms and Regulations, save that against the first defenders (the employer) the pursuer founds on Regulation 22 while against the operator of the rig (the second defenders) he relies on Regulation 3 to embrace the party other than the employer having obligations under the Regulations.

[19 ] In order properly to focus both the submissions of the parties and the Sheriff's opinion, it is convenient at this stage to make reference to two main authorities which featured strongly in the debate.

[20 ] The first is Robb v Salamis (M & I) Limited (2005 S.L.T.523), a decision which was subsequently appealed to the House of Lords. That was a decision of an Extra Division which inter alia held that a ladder leading from a workman's bunk to the floor used for access or egress from the bunk comprised "work equipment" within the meaning of the Regulations and in particular the relevant definition. The ladder which was in some way defective or not sufficiently secured caused an injury to the pursuer and the Division held that, given that they were satisfied that it was "work equipment", having regard to the application of the Regulations to operations in the North Sea, the pursuer was "at work" at the material time and that his employers were therefore liable in damages.

[21 ] The House of Lords subsequently allowed an appeal, currently reported at 2006 UKHL 56 dated Wednesday, 13 December 2006, but the issue of "work equipment" with regard to the ladder was not subject to argument and appeared therefore to go on concession.

[22 ] I have to say that since the case is concerned very much with what is meant by "work equipment" I do not consider that this case is relevant, particularly having regard to the concession, although in passing I would have some concern as to whether, properly understood, a ladder, even if it is being used, is properly to be regarded as "work equipment" in the context of entering a bunk for the purposes of sleep or leaving thereafter before proceeding to work.

[23 ] Much more importantly in the context of the present case, reference was made and much consideration was given to the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis and Others (2004 ICR 1467).

[24] The factual background to this case involved a mechanic employed by the first defendant who was working on a van belonging to the second defendant when a wheel bolt he was attempting to undo sheared off and who sustained injury as a direct result. The plaintiff, relying upon the previous provisions of the 1992 Regulations, succeeded at first instance on the basis that the bolt in question was regarded by the County Court as "work equipment" within the meaning of the definition.

[25 ] The appeal succeeded and in that respect May L.J. stated as follows:

"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(1), it will be recalled, provides:

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

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 this 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 Kelly 1999 SCLR 1025, 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 the following.

(a) The general sense of both Directive 89/655 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 regulation 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 [counsel for the claimant].

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

[26] Eadie L.J. agreed simpliciter with May L.J. as did Brooke L.J. but he added an additional comment summarised by what he says in paragraph 30 as follows:

"30. There is nothing either in the Directive or the Regulations which suggests it was intended to impose the absolute obligation created, for instance, by regulations 5 and 6 in relation to apparatus provided by third parties on which employees are to work".

[27 ] It has to be said that the additional views of Brooke L.J. are properly to be regarded as obiter, the ratio of the case being what is said by May L.J. with which the other two judges both agreed.

[28 ] The ratio of May L.J.'s position seems to me to be that work equipment in the context of repair does not extend to the object upon which the repair is being effected. The definition of "work equipment" is classified by the judges as effectively, paraphrasing, extending only to various tools of the trade being used for the purposes enumerated. Thus the Court excluded both the bolt and the vehicle to which it was attached from falling within the definition of work equipment.

[29 ] Leave to appeal to the House of Lords was refused. The case has been commented upon subsequently, particularly in PRP Architects v Reid 2007 I.C.R. 78. It is of course not binding on this Court but it is of high persuasive authority. It also has to be noted that reference was made in passing to a Scottish case Kelly v First Engineering 1999 SCLR 1025, a decision of Lord Abernethy in the Outer House of this Court concerning an injury to a workman working on a stretch of railway track, in not dissimilar circumstances to Hammond inasmuch that a nut holding a fish plate apparently seized and caused an injury. It is clear to me that this case, as far as this Court was concerned, was presented with an inadequate argument and I am not persuaded that it bears sufficient weight to be considered by this Court. In any event May L.J. indicated that if it had been relevant to his decision he would not have followed it, and I therefore put the case to one side.

[30] As regards the first defender the relevant part of the Sheriff's decision is as follows:

"[29] It seems to me that the observations of May L.J. and Brooke L.J. on Regulation 4 of the 1992 Regulations are of equal application to the equivalent provision in the 1998 Regulations namely Regulation 3(2). Although the wording is slightly different from that used in Regulation 4 of the 1992 Regulations I consider that the two Regulations have the same effect, namely that the employer has responsibility for work equipment supplied by him to his employee for use by his employee at work, but not for equipment on which the employee is working which was provided or supplied by a third party.

The distinction drawn by May L.J. between equipment supplied by an employer to an employee and equipment supplied by and belonging to a third party is if anything an even more valid one under the 1998 Regulations which make new and specific provision as to the duties of non employers in respect of work equipment.

[30 ] It is clear to me that the situation as between the pursuer and his employer, the first defenders, in the present case is essentially that described by Lord Justice May in Hammond, namely that the pursuer was, in the course of his employment with the first defenders and on their instructions, working on a piece of apparatus owned and provided by a third party, namely the installation owner. In these circumstances, in the interpretation of a UK Statute of general application, and in the absence of any Scottish authority I feel bound to follow the judgement of the Court of Appeal in England. There is nothing in the 1998 Regulations which indicates to me that May L.J.'s judgement should not apply to Regulation 3(2) as it did to the old Regulation 4. In addition there is nothing in the pleadings to suggest, and it was not argued, that the first defender had anything to do with the door closer other than to send their employee, the pursuer, to work on it. They had no control over it. Although I consider that the door close (sic) was 'work equipment' for the purposes of the 1998 Regulations, I do not consider that the Regulations applied to the first defender in respect of the door closer on which the pursuer was working at the relevant time. Accordingly, I will dismiss the action in so far as it is directed against the first defender".

[31 ] It is to be noted that the learned Sheriff purported to follow Hammond, but not on the question of work equipment but rather on the additional line taken by Brooke L.J., causing him to dismiss the action against the first defenders.

[32 ] As regards the position of the second defenders the learned Sheriff says as follows:

"So far as the second defender is concerned, I consider the position to be different. It is clear, reading the pleadings as a whole, that one of the functions of the employees of the first defenders was to carry out maintenance and repair work on, among other things, the door and its associated equipment which was owned by the second defenders and formed part of their installation. The door in question was the door to the central control room which the pursuer avers was a very busy door. The door and therefore the closer would be constantly used by workers on the installation in the course of carrying out their work. I have already indicated that the closer falls within the definition of apparatus or an appliance, and that it would be used, in the words of the Regulation, 'at work' by the people aboard the installation as they entered and left the control room. In general terms it was work equipment as defined in Regulation 2. Although Lord Justice May indicated that 'use' did not include repair, that, I understand, was in the context of his consideration of the liability of an employer in terms of Regulation 4 of 1992 for equipment not provided by the employer, owned by another and being repaired by the employer's employee".

[33 ] Not surprisingly, having regard to the view that the Sheriff took of work equipment as regards the first defenders, he allowed a proof before answer on that basis against the second defenders as the owners of the so-called equipment.

[34 ] Against this decision the pursuer lodged the following grounds of appeal:

"1. The sheriff erred in law when he decided to dismiss the action in so far as it was directed against the first defenders. Having correctly identified that the door closer was work equipment within the meaning of the Provision and Use of Work Equipment Regulations 1998, he erred in then holding that the provisions of those Regulations did not apply to the first defenders at the time that the pursuer was working on the door closer. Those Regulations apply to the maintenance and repair of work equipment which is used at work. The pursuer, and everyone else on the rig, used the work equipment each and every time that they went through the door to which it was attached. Once it is accepted to be work equipment, the pursuer is entitled to the protection of those Regulations when he was trying to repair the door closer.

2. The Sheriff erred in law in deciding to dismiss the action in so far as it was directed against the first defenders by basing his decision upon something

which was not argued before him. It was argued for the first defenders that the door closer was not work equipment when it was being worked upon by the pursuer as it was not the property of his employers. It was not argued that the door closer was work equipment but that at the time of the repair the said

Regulations did not apply to the first defenders. Accordingly, the pursuer's counsel when replying to the submission for the first defenders did not address the basis upon which the Sheriff decided the issue.

3. The Sheriff has erred in law in that he gives no reason why the said Regulations did not apply to the first defenders in respect of work equipment when that work equipment was being repaired.

4. The Sheriff has erred in law in that he has failed to consider the effect of Regulation 22 of the said Regulations, which deals with the maintenance of work equipment. Once it is accepted, as it was accepted by the sheriff, that the door closer was work equipment, then the provisions of Regulation 22 apply for the benefit of the pursuer. If the door closer is work equipment, then it has to be capable of being maintained without risk to the health or safety of the person who is carrying out the maintenance operation".

[35 ] The second defenders cross-appealed against the decision of the Sheriff with regard to the allowance of proof before answer in the following terms:

"The defenders and respondents respectfully submit that, while the learned Sheriff correctly dismissed the action against the First Defenders, he erred in refusing to dismiss the action insofar as laid against the Second Defenders.

Having correctly found that the Provision and Use of Work Equipment Regulations 1998 did not apply to the door closer in the context of the claim against the First Defenders, the Sheriff went on to find the position otherwise with regard to the Second Defenders. In doing so he erred. The 1998 Regulations do not extend to items upon which a person is working (as opposed to items used by that person to undertake such work). There is no warrant in the 1998 Regulations for holding that the ambit of the Regulations, so far as their application to particular items is concerned, is different as between an employer, on the one hand, and the owner of the equipment, on the other.

Further and in any event, in giving his reasons for holding that the 1998 Regulations did apply to the door closer so far as the Second Defenders were concerned, the learned Sheriff erred in holding, at [32], that the relevant matters were within the control of the Second Defenders. In narrating the statutory provisions of Regulation 3(3)(b) (at [32]), the Sheriff omits the final words, which make clear that the obligations imposed thereby only apply 'to the extent of' the control exercised by the relevant defender. The accident was caused by the repair operation undertaken by the pursuer. The only way in which the Second Defenders are said to have had relevant control is that they owned the door-closer and requested the repair thereof. Neither averment amounts to relevant 'control' for the purposes of the 1998 Regulations.

The case brought under the 1998 Regulations is thus irrelevant quoad both defenders. As the 1998 Regulations are the only ground of liability averred on record, the action should thus be dismissed in its entirety".

Against that background, counsel for the appellant submitted that if any equipment involved and being used by the employee was embraced by the Regulations and as such led directly to an injury to the relevant workman, the Regulations were breached. He reached this conclusion by reference to Regulations 2 and 3 and accordingly rejected Hammond as being a proper approach to the interpretation, which he submitted was far too narrow. In essence his position was that the pursuer was working with equipment, namely on the door closer mechanism when the accident happened. He was at work. It mattered not that the door closer belonged to the operator. It was incumbent upon the employer to protect the workman at work in respect of anything which he legitimately was working on or at. The approach of the Court of Appeal in Hammond was wrong and should not be followed. Mr Macdonald accepted that but for the inclusion of the word "repair" in the definition provisions he would have no case, but given the fact that that word was there it was plain that the activity being carried out at the time by his client was one of repair to the door closer mechanism and that brought it within the ambit of the Regulations.

[36 ] With regard to the cross-appeal he not surprisingly maintained the position as regards "work equipment" but accepted that on a separate issue of control, given that the second defender was not the employer, there would have to be a proof before answer which in fact had been allowed.

[37 ] Mr Dunlop for the defenders, representing both, submitted that in each context work equipment did not include the door closer mechanism. He maintained that the position taken up by the Court of Appeal in Hammond as regards the definition or application of the phrase "work equipment" was entirely correct. In the context of this case the work equipment being used by the pursuer was the screwdriver and not the mechanism upon which the pursuer was working. He pointed to the fact that the definition of the phrase embraced the word "activity" which suggested an active rather than passive role as far as the use of work equipment was concerned. With reference to the word "installation", which might on one view have a very wide meaning, he made reference to the fact that this was taken from the French text which used the word "installation" and properly understood it should mean "plant" on the ejusdem generis rule, properly applied in the general idea of tools of the trade. It could for example be a bulldozer or a crane. Hammond was correct and should be followed with the immediate consequence that the pursuer's case in respect of both defenders must fail because he has not established that the door closer which led to his injury on his averments was work equipment.

[38 ] Assuming he was wrong about that, Mr Dunlop submitted that in any event if it was to be regarded as work equipment it was under repair and was therefore not in use, the purpose of the work being carried out by the employer through the employee was a repair of the piece of equipment. It was neither in use nor could it be regarded as suitable if it required to be repaired (Regulation 4).

[39 ] Mr Dunlop accepted that if he was wrong in his approach with regard to the application of the phrase "work equipment" to the door closer mechanism, then the only issue that thereafter arose in relation to the cross-appeal was that of control which again would have to be a matter of proof before answer.

[40 ] It has to be noted that both counsel sought to argue various anomalous results of the view opposite to their position as regards the definition of work equipment, but I do not consider that type of approach is particularly helpful. The issue here is one entirely of statutory construction, albeit in respect of a very difficult set of provisions when looked at as a whole.

[41 ] In seeking to resolve this matter, which I do not find easy, by reference to the terms of the Regulations, I have to say at once that I find the notion that a fixture in a structural building can be regarded as "work equipment" even if it has a purpose, in this case that the door closed automatically, a somewhat strange result. However, I am not influenced by that point more than to make the comment. It is for the same reason I have some doubts about the question of whether the ladder in Salamis is properly to be regarded as work equipment.

[42 ] To my mind the approach of the Court of Appeal in Hammond is entirely correct. Properly understood the definition provisions refer to "use" in a context of an activity and it is perfectly plain to me in the definition of the provisions of Regulation 2 that "use" plainly implies activity involving the work equipment in normal use, admittedly including as it does the notion of repair. The definition of "work equipment" therefore has to be looked at in the context of the activities there as set out. I consider that the approach of May L.J. in restricting those definitions to effectively tools at work lends a sensible and practical meaning to the Regulations which excludes any object upon which the activity is being carried out. The word "installation" adds nothing. In this case the work equipment was the screwdriver. I do not consider it necessary for us to go beyond the reasoning of May L.J. particularly in paragraph 24 when he is discussing the status of the car upon which the work was being carried out.

[43 ] I therefore conclude that the Sheriff was wrong to determine that the door closer mechanism was "work equipment" and that accordingly the case against both defenders is irrelevant under all the Regulations which are pleaded. However, since the sheriff dismissed the action so far as laid against the first defenders, although on an erroneous basis, his decision in that respect must stand. The action thus requires to be dismissed against both defenders. I offer no view as to whether the additional position taken by Brooke L.J. is necessarily correct.

[44 ] Given that the point is of some importance, I am also prepared to approach the matter, upon the basis that, contrary to what I have thus held, the door closer mechanism is to be regarded as work equipment and the pursuer is to be regarded as at work because he is working on the Platform at the time in terms of the relevant Regulation.

[45 ] In this respect it has of course to be recognised that included in the definition of "use" in Regulation 2(1) is the word "repairing".

[46 ] However in this context it is again important to place the context of Regulation 4 against the definitions in Regulation 2, since at all times the purpose I consider of the application of the phrase "work equipment" is to protect the workman using such equipment. This might embrace routine maintenance or cleaning or even minor repairing while the machine is operating (cf English v North Lanarkshire Council 1999 S.C.L.R.310). What in my opinion it could never embrace is a situation where work is being carried out of a major repair nature designed to return the equipment to a workable and safe state. This is what I consider the word "suitable" must be construed to mean in Regulation 4, otherwise a circular situation is reached whereby the breakdown of machinery which requires to be repaired still renders the employer exposed to the terms of the relevant safety regulations as regards equipment being repaired. It is plain that Regulation 5 is designed to embrace an obligation to maintain and repair at a time when the machine in question is not otherwise in use. By definition in seeking to remove the door closer mechanism, which is what the pursuer was doing at the time of the accident, he cannot be said to be using it for a purpose connected with work as understood by the definition of "use". He is effecting an action of repair which is entirely removed from the normal working of the machine.

[47 ] It follows that if it had been required to determine the matter on the basis that it was "work equipment", I would have reached the same conclusion that there was no statutory breach.

[48 ] I should add that the issue of certification of counsel before the Sheriff, which inadvertently had not been dealt with in the lower Court ,was still alive; but given the result, on which we are agreed, that is no longer the case.

[49 ] I agree that the appeal and the cross appeal should be dealt with as your Lordship in the chair has proposed.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Johnston

Lord Marnoch

[2007] CSIH 23

XA33/06

OPINION OF LORD MARNOCH

APPEAL

PETER SPENCER-FRANKS

Pursuer and Appellant;

against

KELLOGG BROWN AND ROOT LIMITED AND OTHERS

Defenders and Respondents:

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Act: McDonald; Drummond Miller, W.S. (for Lefevre Litigation, Aberdeen) (Pursuer and Appellant)

Alt: R Dunlop; HBM Sayers (Defenders and Respondents)

29 March 2007

[50 ] In agreeing that the appeal should be refused and the cross-appeal allowed, I wish to add just a few words of my own.

[51 ] In the first place, I respectfully adopt the reasoning of May L.J. in Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830; [2004] ICR 1467 in holding that "work equipment" for purposes of what are now the 1998 Regulations is concerned with what can loosely be described as "tools of the trade" rather than with miscellaneous objects which come to be worked upon incidentally with the use of such tools. Although there was some discussion in that case about the possible importance of such objects having been "provided" by a third party I do not, myself, see that consideration as determinative and I do not think that the ownership of an object is in any event determinative of who should be seen as "providing" it to the employee.

[52] The position in the present case is, however, rather different in that counsel for the appellant did not suggest that the door closer became "work equipment" simply because it was being worked upon but rather because it was part of the Oil Production Platform which, as a whole, in effect constituted the appellant's workplace. It was thus, he said, indistinguishable from the bunk ladder held to be "work equipment" by the Extra Division in Robb v Salamis (M & I) Limited 2005 S.L.T. 523.

[53 ] For my own part, I find the decision on this matter in Robb less than wholly convincing and I note that it proceeded on the important concession that a ladder which provided access or egress elsewhere on the Platform, where operations were being conducted, could properly be seen as "work equipment", - a concession as to the validity of which I would wish for the time being to reserve my opinion. Counsel for the respondent submitted that the door closer was in any event different in kind from a ladder. Indeed, it was incapable of being "used" by employees in any meaningful sense since it only operated after the employee had passed through the door in question. Whatever else, this submission certainly emphasises the artificiality of what I may describe as the "all embracing approach" and, were it necessary to do so, I would give effect to it.

[54 ] But, even assuming for present purposes that the door closer did constitute "work equipment", the question remains whether it can be said that the appellant was at the time "using" it in that capacity for purposes of Regulation 4. In this connection, counsel for the appellant relied, not unnaturally, on the fact that the definition of "use" in Regulation 2 expressly includes, inter alia, "repairing, modifying, maintaining, servicing and cleaning". Moreover, although, rather surprisingly, the case was not cited to us, I take note that in English v North Lanarkshire Council 1999 SCLR 310 Lord Reed, in a fully reasoned opinion, held that Regulation 5(1) of the 1992 Regulations (of which Regulation 4(1) of the current Regulations is the equivalent) covered "not only the suitability of a meat-slicing machine for the purpose of slicing meat safely, but also as covering its suitability for being cleaned safely".

[55] In my opinion, however, when the Regulations are looked at in their entirety and Regulation 2 is read in its overall context, it becomes clear that, while Regulation 4 can certainly encompass "use" by "repairing, modifying, maintaining, servicing and cleaning", the intention is that this is only where such use can be seen as routine, such as where the ordinary employee is expected to do these things as ancillary or incidental to the main day-to-day use of the "work equipment". That, it seems to me, is quite distinct from the specialised repair (involving dismantling) in the present case which, on his own averments, the appellant was carrying out in his capacity as a "mechanical technician". In that situation, and on the present hypothesis, I am of opinion that the first defenders, as the appellant's employers, were doing no more and no less than attempting to comply with Regulation 5(1), namely to "ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair". In so far as the appellant's pleadings rely on Regulation 4 and Regulation 5(1) they are accordingly, in my opinion, on any view irrelevant.

[56 ] Lastly, lest it be thought that I have overlooked either matter, I would record that in the present case the appellant, for some reason not immediately apparent to me, makes no case under Regulation 4(1) of the 1998 Regulations. That said, we heard no argument as to the significance, if any, of that omission. On the other hand, Regulation 22 is founded on in the appellant's pleadings but was not referred to by counsel for the appellant in his opening speech. Counsel for the respondents' position was that that Regulation was on any view inapplicable and that the averments about it were clearly irrelevant. Counsel for the appellant did not demur to that submission in his reply.

[57 ] For all the foregoing reasons, and for the other reasons given by your Lordships, I am satisfied that in this case the averments of the pursuer and appellant against both defenders are, as matter of law, irrelevant.