PUWER to the people

What is “work equipment” and for whom has been the subject of litigation on both sides of the border. Cases have swung from England to Scotland and up to the Lords. In the recent case of Spencer-Franks v Kellogg, Brown and Root Ltd [2008] UKHL 46, [2008] All ER (D) 26 (Jul), the House of Lords revisited the question of what constitutes work equipment within the meaning of the Provision and Use of Work Equipment Regulations 1998 (PUWER 1998). Reversing an earlier Court of Appeal judgment, the case highlights some important considerations to be made when determining if something is work equipment and in what circumstances liability arises.

PUWER 1998 defines work equipment as: “any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)”. This definition differs from that which was provided by PUWER 1992. They stated that work equipment meant “any machinery, appliance, apparatus or tool and any assembly of components which, in order to achieve a common end, are arranged and controlled so that they function as a whole”. In spite of PUWER 1998 the meaning of for “use at work” was not changed.
Meaning of work equipment

In Hammond v Commissioner of Police of the Metropolis [2004] EWCA Civ 830, (2004) ICR 1467, the Court of Appeal considered the meaning of work equipment by reference to whether the employer had provided the claimant with the equipment for the claimant to use it at work. Here he was employed by the commissioner as a mechanic. He was working on the wheel of a police-dog van when one of the wheel bolts sheared off, causing him to fall and suffer injury. The issue to be determined was whether the bolt was “work equipment” within the meaning of PUWER 1998. Lord Justice May (with whom Lord Justice Brooke and Mr Justice Eady agreed) said (at 24–25): “Although the definition of what may be work equipment is to be found in reg 2, the ambit of the expression 'work equipment' in these Regulations is determined by reg 4 [reg 3(2) of PUWER 1998]…This indicates, in my view, that the Regulations are concerned with what may loosely be described as the tools of the trade provided by an employer to an employee to enable the employee to carry out his work.”

The reasoning behind this construction was clear: the Court of Appeal was concerned about unintended consequences. In particular, that a garage might be liable to one of their employees if they suffered personal injury while repairing a defective car. In attempting to limit the ambit of the regulations, the Court of Appeal conflated two issues: what is work equipment and whether it was provided for use or used by the claimant at his work.

The case of Spencer-Franks, recently heard in the House of Lords, was initially heard by the Scottish Court of Outer Session. In 2003 the appellant, Mr Spencer-Franks, had been employed by Kellogg Brown and Root Ltd (KBR) as a mechanical technician. KBR had previously contracted to supply workers to operate the Tartan Alpha oil platform in the Scottish sector of the North Sea, which was operated by Talisman Energy (UK) Ltd (Talisman). Mr Spencer-Franks was one of the workers who had been supplied to work on the platform. He had been asked to inspect and repair a closer on a door to the central control room which was not working properly. He decided to remove the closer in order to repair it in the workshop. Before doing so he tried to assess the level of tension in the linkage arm by backing off by half a turn the screw which held it to the door frame. This should not have caused the screw to disengage. However, the screw pulled out and the arm struck Mr Spencer-Franks in the face. As a result he lost four teeth. He brought proceedings against both KBR (as his employer) and Talisman (as they were alleged to have had “control” of the door closer) claiming that one or both of them had been in breach of PUWER 1998.

The Court of Session, by following the reasoning in Hammond, found that the closer was not work equipment. It noted that the word “use” in PUWER 1998 was stated as including “repair”, but it held that it was the claimant's screwdriver and not the door closer that was the work equipment. This was because the claimant was not “using” the closer as work equipment as per Hammond. Rather, he was working on it and work equipment in the context of repair did not extend to the object upon which the repair was being effected. Work equipment extended, to repeat Hammond, only to the “tools of the trade” which the door closer was not.

The lords rejected this approach unanimously. There was, their Lordships held, a clear distinction between the definition of work equipment in reg 2 and the use of that equipment in reg 3. Rather than conflating definition and use, a two-stage approach was required. First, it was necessary to determine whether the item in question fell within the scope of the definition of work equipment in reg 2(1). If it did, the definition of “use” then listed some of the activities which count as “use” in relation to that item for the purposes of PUWER 1998.

On the facts, the lords held that the door closer was work equipment. Lord Hoffmann considered that it was wrong to consider the definition in reg 2 as being qualified in its core meaning by reg 4. Regulation 4 stated that PUWER 1998 applied only to work equipment as defined in reg 2. It did not mean that it determined the ambit of the expression work equipment. Rather, it stood on its own; one should first decide whether something was work equipment and then whether PUWER 1998 applied to it. On the facts of the case before the lords, everyone on the installation used the door to enter or leave the control room. In doing so, they used the closer. Its purpose was for work. It was, therefore, work equipment. Similarly, in Hammond, the van was equipment for use at work. It is likely that the case would now be decided differently and that the van would be held to be work equipment. If it was work equipment for one employee, as May LJ considered that it was, then it would be work equipment for all. The work equipment did not stop being work equipment on account of it being repaired.

So to the definition of work equipment, we are where we were pre-Hammond. Lord Rodger stated that “any machinery or appliance etc for use at work by an employee (which means any employee) is likely to be 'work equipment'”. The HSE Guidance accords with this view that the PUWER 1998 applies to “almost any equipment used at work”. If an item is work equipment one can then consider whether PUWER 1998 applies and, if so, in what circumstances liability arises.
Application of the Regulations

Regulation 3(2) has already been mentioned above. It states that the requirements of PUWER 1998 on an employer in respect of work equipment apply to such equipment provided for use or used by an employee of his at work. By PUWER 1998, reg 3(3)(a) applies to the self employed in respect of work equipment they use at work. Hence if something is work equipment, one must then go on to consider whether it has been provided for use at work. It need not have been provided to the actual claimant rather than any of the other workers in the undertaking. If we return to Hammond, the issue would be whether Mr Hammond was a worker in the undertaking to which the van had been supplied. Here, the police officer that would have driven the van and Mr Hammond would both have been employed (questions of office-holders aside) by the commissioner. The commissioner would have made the van available to workers within the undertaking for use at work. Therefore, by reg 3(2) the commissioner would be potentially liable.

Adopting one of Lord Hoffmann's examples, it would be different where a mechanic worked in a private garage and the Royal Mail brought in their van for repair. While the van would be work equipment, the mechanic would not be a worker in the undertaking to whose workers the van had been supplied. Of course, the Royal Mail might be liable for any injury.
Ongoing concerns

Following Spencer-Franks, there are still two potential concerns. The first is the potentially open-ended liability on employers. The second is the class of person whom PUWER 1998 may protect.

The potentially open-ended liability of employers pursuant to reg 3(2) suggests that further legal argument is likely. In the Royal Mail example, one can see how pursuant to reg 3(3)(b) the Royal Mail might be liable for an injury caused to a mechanic by their defective vehicle. However, the open nature of reg 3(2) may also impose liability on the mechanic's employer. The words that cause the trouble are those which state that the obligations imposed on an employer apply to such equipment “provided for use or used by an employee”. It would appear that the words “or used by” could confer a liability on an employer for equipment provided by a third party.

Second, although the trigger for the requirements being imposed on an employer (or person with control of work equipment) is the use of work equipment by one of his employees, most of the requirements themselves are not solely concerned with the health and safety of employees. One of the consequences of Spencer-Franks is that the class of persons to whom the duties are owed is potentially without limit. As Lord Neuberger put it, “there seems to me to be nothing in the express terms of [PUWER] to suggest that the duties they impose are to be limited to full time employees, or any other limited class of persons”.

However PUWER, as interpreted, goes still further; for example, under reg 4(4), work equipment must be suitable in any respect which it is reasonably foreseeable will affect the health and safety “of any person”. This duty may encompass contractors, visitors and potentially bystanders who may be affected by work equipment.
Wider interpretation

The House of Lords' decision broadens the number of potential claimants by favouring a wider interpretation of the meaning of work equipment. It also demonstrates how it may be more difficult for employers to escape liability when considering the wording of PUWER 1998. For now, at least, almost any equipment used at work will be considered work equipment. The scope of those who are protected and those against whom liability may arise remains to be determined.

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