Barnett v Scottish Power (t/a Manweb Metering Business)

An employer’s common-law duty to provide proper plant and equipment may impose primary liability where an employee lacks suitable equipment and uses an available item to perform work. A finding that the employee was not contributorily negligent will not be disturbed on appeal where it rests on clear factual findings, including prior satisfactory use of the item, no apparent real risk, and absence of relevant instruction. Where common-law liability is accepted and the statutory issue cannot affect the result, an appellate court may decline to determine the scope of the Provision and Use of Work Equipment Regulations 1992. Questions about the Regulations’ application to the equipment were left open.

In Barnett v Scottish Power (t/a Manweb Metering Business), a part-time electricity meter reader was injured after using a small household chair to reach a meter. She said that her employer had prohibited the use of her own steps, failed to provide alternatives, and failed to give adequate safety instruction.

On a liability-only trial, Chester County Court found breach of the common-law duty of care and of regulations 5 and 9 of the Provision and Use of Work Equipment Regulations 1992. It rejected contributory negligence. Permission to challenge the common-law findings was refused, leaving statutory applicability and contributory negligence as the issues on appeal.

Appeal dismissed with costs. Lord Justice Latham gave the principal judgment. Lady Justice Arden agreed. Lord Justice Judge agreed and confirmed that the claimant was entitled to succeed in full at common law.

1. Scope of the appeal. Permission was refused to challenge the findings on breach of the common-law duty and causation. Those findings were factual and could not properly be reopened on the appeal. The appellant therefore accepted primary common-law liability for failing to provide proper plant and equipment.
2. Contributory negligence. The lower court had made clear findings about the claimant’s conduct. She had previously used the chair satisfactorily, so there was nothing about it which should have caused her to recognise a real risk. The employer had also given her no relevant instruction about using the chair or refusing to read meters which she could not reach. Those findings left no basis for concluding that she had acted blameworthily or had accepted an unacceptable risk. The appellate court would not disturb the conclusion that there should be no reduction for contributory negligence.
3. Statutory duties. Because the statutory issues could not affect either primary liability or contributory negligence, detailed consideration of the Provision and Use of Work Equipment Regulations 1992 would have been academic. The court therefore expressed no view on whether the Regulations required an employer to provide safe equipment, whether they should be construed purposively in light of Council Directive 89/655/EEC, or whether the chair was work equipment within regulation 2(1). Lord Justice Judge likewise deliberately refrained from expressing any view on the Regulations.

• Court of Appeal (Civil Division). In Barnett v Scottish Power (t/a Manweb Metering Business) [2002] EWCA Civ 104, the appeal was dismissed with costs.
• Chester County Court. On 9 October 2001, His Honour Judge Hughes found breach of the common-law duty of care and of regulations 5 and 9 of the Provision and Use of Work Equipment Regulations 1992, and rejected contributory negligence.