Scottish Sheriff Court Decisions

[1] In this action the pursuer seeks reparation for loss, injury and damage which he says he sustained through the breach of statutory duty of the first and second defenders. The pursuer says that he sustained the injuries in an accident which occurred during the course of his employment by the first defenders and whilst he was working in the course of that employment on the Tartan Alpha Platform in the Scottish sector of the North Sea. That platform was owned and operated by the second defenders.

[2] The facts of the case as pled by the pursuers, and so far as relevant for the purposes of the debate, can I think be fairly summarised as follows:-

[3] When defences were lodged, both defenders took pleas to the relevancy of the pursuer's averments seeking dismissal of the action and, in the case of the second defender, exclusion of the pursuer's averments from probation. Only the first defender had lodged a note in support of his preliminary pleas and accordingly, at the options hearing, the second defenders' preliminary pleas were repelled. By the time the case called for debate, the first defenders had accepted, at least for the purposes of this action, an obligation to indemnify the second defenders and were therefore left in the slightly unfortunate position that they had taken a plea on their own behalf to the relevancy of the pursuer's case but had taken over the responsibility for the conduct of the second defenders' defence at a time when the second defenders' challenge to the relevancy had been repelled for want of insistence. In these circumstances counsel for the pursuer very fairly agreed that the second defenders' pleas-in-law, should be re-instated and that the debate should proceed in respect of the pleas for both defenders.

[4] The Rule 22 Note which had been submitted on behalf of the first defender raised two separate issues. The first was that the pursuer in his pleading averred two different versions of the accident, which he should not be allowed to do. The second was that the sole basis of liability pled against the first defenders was liability in terms of the Provision and Use of Work Equipment Regulations 1998 (hereinafter "the 1998 Regulations"). The defenders contended that the definition of work equipment did not include apparatus which was being worked upon and that therefore the Regulations did not apply, .

[5] So far as the first of these issues was concerned the solicitor for the defenders pointed to the averments in condescendence 2, page 3, of the Record. She said that the way in which the pursuer described the accident was confusing, it was not clear what the pursuer said he was doing at the time, and accordingly the defenders were not given fair notice.

[6] The defenders' solicitor, correctly in my opinion, devoted more time and effort to the second argument which she described as her principal argument.

[7] This boiled down to the question whether the door closer upon which the pursuer was admittedly working was or was not work equipment for the purposes of the 1998 Regulations in circumstances where the closer was the property of a third party.

[8] Regulation 2(1) of the regulations defines "use" in relation to work equipment as meaning "any activity involving work equipment, and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning". It also defines "work equipment" as meaning "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)".

[9] 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 and (4) in this regulation "suitable" means suitable in any respect which it is reasonably foreseeable will effect the health or safety of any person".

[10] The defenders' submission, as outlined in her Rule 22 Note was that the regulations defined what was work equipment, and that the definition given did not include apparatus which was being worked upon, but rather the equipment which was provided to a workforce to carry out the work. The door closer which was the subject of the work being carried out by the pursuer did not fall within the definition, the regulations accordingly did not apply and the action should be dismissed. On this aspect she referred to Hammond v The Commissioner of Police for the Metropolis and Others 2004 ICR 1467, and to Beck v United Closures and Plastics 2001 SLT 1299 91. In Hammond v The Commissioner of Police the Court of Appeal had overturned a finding by the judge at first instance that a wheel bolt on a motor car was work equipment for the purposes of the Provision and Use of Work Equipment Regulations 1992 (the 1992 Regulations - being the predecessors of the 1998 Regulations) when a mechanic was seeking to remove the wheel and the bolt sheared. She submitted that the decision in that case should have great persuasive authority as there required to be a conformity of interpretation of a UK statute of this kind. In Beck v United Closures and Plastics, a case in which doors were held to be work equipment, she pointed out that that case was different in that the doors were part of an assembly of components which were themselves part of the production process, and that therefore the doors were work equipment.

[11] She submitted that the situation in the present case was entirely different from Beck . The pursuer was working with a screwdriver on a door closer whose purpose, as its name suggested, was to close a door. The door closer was not the property of the employers of the pursuer. In these circumstances the door closer was not work equipment as defined by the regulations and the action should be dismissed against both defenders. She submitted that the situation was very similar to Hammond, and that I should follow that case. When replying to counsel for the pursuer, she made the point that if equipment of this kind was not considered to be work equipment it did not have the effect of leaving a workman unprotected. There was a raft of regulations which could apply. It was not that the pursuer did not have any potential remedy. He just did not have a remedy under this particular regulation.

[12] For the reasons I set out later I did not require counsel for the pursuer to respond to the first of the defenders' submissions.

[13] So far as the second submission was concerned, counsel for the pursuer submitted that the 1998 Regulations marked a significant change from the 1992 Regulations. It was clear from the preamble to them that they were intended to apply to the whole range of health and safety at work issues covered by the 1974 Act. The definition contained in the regulation was, in counsel's words, "incredibly broad." As could be seen from the case of Beck it could cover doors in a factory. So far as the word "use" was concerned this too given a very broad definition which included any activity involving work equipment. He submitted that once a piece of equipment became work equipment it did not thereafter lose that character just because it was being worked upon by other work equipment. That was clear from the inclusion in the definition of the word "use" such activities as repairing, modifying, maintaining and servicing.

[14] Turning to the door closer itself, and using a neutral word "thing", he submitted that the door closer was simply a thing which closed the door after someone had opened it, the question being whether that thing was work equipment. He said it was not immediately obvious that it was not a machine of some kind or an appliance of some kind. It could be considered to be apparatus, either on its own or in conjunction with the door it was attached to, it could be considered to be an installation in the sense that it had been installed on the door and it could be a tool in the sense that it achieved work.

[15] He submitted that Regulation 4(3) would lose effect, and that maintenance engineers could cease to be protected if work equipment ceased to be work equipment when it became the object of work such as maintenance or repair. Regulation 4(4), which provide a definition of the word "suitable", indicated the very wide range of a regulation of this kind. He submitted that if the defenders were right, Regulation 22 would not be necessary whereas if they were wrong it made perfect sense.

[16] He referred to the case of Hammond where he submitted there was a complicating factor brought about by the fact that the car being worked on was not the property of the employer. He referred to the case of Kelly v First Engineering Limited, a decision of Lord Abernethy issued on 27^th May 1999 and commented on in Hammond. At worst he said that I could not hold that the pursuer's position was wrong without a proof of the facts. He referred to the recent decision of Sheriff Jessop in this court. Sheriff Jessop allowed a proof before answer in that case on the basis that he could not determine whether the piece of wire rope was work equipment without hearing evidence as to its nature and purpose.

[17] I do not consider that this is a case in which a proof before answer would help. I do not understand there to be any dispute as to what a door closer does, or that this door closer was appended to a door that led to the control room of an offshore installation, namely the Tartan Alpha Platform. This is a matter of (1) statutory construction of the words "work equipment" as defined in Regulation 2 of the 1998 Regulations (as was the case of Kelly v First Engineering) and (2) determination of the applicability of the 1998 Regulations to each of the defenders in the circumstances which applied at the time of the pursuer's accident. Kelly v First Engineering was a case under the 1992 Regulations wherein the phrase "work equipment" is given a slightly different definition. In that case the pursuer was working on a stretch of railway track and the relevant equipment was a metal lug attached to a high tension bolt which in turn held in place a fish plate which joined two pieces of rail. Under pressure the nut seized causing the metal lug to snap causing the pursuer to sustain a strained shoulder. In the context of the 1992 Regulations, Lord Abernethy considered that the bolt was "apparatus" and therefore work equipment within the meaning of Regulation 2.

[18] This decision was distinguished by the Court of Appeal in the case of Hammond v The Commissioner of Police for the Metropolis. This was a case brought under the 1992 Regulations. In it May LJ said at para. 24:-

[19] Eady LJ and Brooke LJ agreed.

[20] It seems to me that Lord Abernethy and May LJ were dealing with two different matters, Lord Abernethy with the application of a definition of work equipment which made no reference to "use", and May LJ with the determination of the question whether an item had been provided by an employer for use at work.

[21] The first point argued before me was one of statutory interpretation, as it was for Lord Abernethy in Kelly v First Engineering. In that case, Lord Abernethy said at page 5 :-" In my opinion what I have to do here is to construe the words in Regulation 2 defining "work equipment" giving them their ordinary meaning and deciding whether the bolt in question here came within that definition. .......... apparatus is a word of wide meaning and I am clearly of opinion that it is habile to cover this bolt. The argument put forward by Mr O'Kerrell that the bolt was part of a structure and that the structure was not a piece of work equipment was in my opinion unsound. It was based not on the actual words used in Regulation 2 but the gloss put on these words in the Health and Safety Executive Guidance. In my opinion it would be inappropriate to proceed on that basis."

[22] There is an important distinction between the Definitions Provisions contained in Regulation 2 of both the 1998 and the 1992 Regulations. Regulation 2 of the 1992 Regulations provides, inter alia,:-

"Work equipment means any machinery, appliance, apparatus, tool or installation for use at work whether exclusively or not".

[24] So far as applicability is concerned Regulation 4(1) of the 1992 Regulations provides:-

[26] In Hammond, May LJ makes it clear, in para. 20 quoted above, that the requirements of the Regulations do not apply by virtue of Regulation 4 of 1992 to an object which the employee is working on when that object was not provided by the employer. Brooke LJ at para 30 says "There is nothing either in the Directive or the Regulations which suggest it was intended to impose the absolute obligations created for instance by Regulations 5 and 6 in relation to apparatus provided by third parties on which employees are to work". Regulation 5 of the 1992 Regulations and Regulation 4 of the 1998 Regulations, on which the pursuer founds are in identical terms

[27] I have already observed that Lord Abernethy was not invited to look at Regulation 4 of the 1992 Regulations at all, but simply to construe the words contained in the Definitions Section of these Regulations.

[28] May LJ continues in paragraph 25 of his judgment as follows:-

[29] It seems to me that the observations of May LJ and Brooke LJ 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 LJ 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 LJ,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 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] 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,

[32] Regulation 3(3) provides that the requirements imposed by the Regulations on an employer shall also apply

The pursuer avers that the second defenders had control over the door closer, that it belonged to the second defenders, that they had control over all maintenance on the platform, and that they had issued a permit for its repair. Assuming that to be the case in my opinion the second defenders had to a considerable extent control of the closer for the purposes of Regulation 3(3)(b)(i) and of its use at the time for the purposes of Regulation 3(3)(b)(iii). They were therefore persons on whom the requirements imposed on employers by the 1998 Regulations were, by virtue of Regulation 3(3)(b) also imposed.

[33] The pursuer has therefore pled a relevant case based on the Regulations against the second defender and is entitled to a proof.

[34] There remains outstanding the other argument put forward by the defenders' solicitor, which related to what she described as confusion arising out of the pursuer's averments in condescendence 2 and which, in fairness to the solicitor, she described as a "finicky point". What the pursuer says in condescendence 2 is:-

It seemed to me that this gave sufficient notice to the defenders that the pursuer wanted to assess the level of tension in the closer arm, he tried to release the tension by pushing the arm, he needed to back off the screw which held the arm by about half a turn in order to assess the tension, when the screw holding the arm is screwed fully home it requires three to four complete turns to disengage it, as the pursuer backed off the screw by half a turn in order to look at it the screw disengaged, releasing the tension so that the arm of the door closer struck the pursuer. The phrase towards the end of the passage quoted "As he did so" seems to me to refer clearly to the backing off of the screw by one half turn. The passage as a whole seemed to me to be an adequate description of the circumstances surrounding the accident, and to give fair notice to the defenders.