Ball v Street

A person who retains control over work equipment in connection with a business may owe duties under regulation 3 of the Provision and Use of Work Equipment Regulations 1998, even while physically absent and even where use is not separately charged.

Regulation 5(1) imposes an absolute and continuing duty to maintain equipment in an efficient state, in efficient working order and in good repair. A significant mechanical failure causing injury establishes breach without proof of negligence or foreseeability of the particular accident. Overall productivity and the continued operation of other components are irrelevant.

The narrower approach applicable to personal protective equipment does not govern general work equipment.

Mr Ball, a farmer, was injured when a spring on a haybob machine fractured while he was adjusting its tines. The machine belonged to Mr Street, another farmer, who had agreed to provide mowing and baling services using his own equipment. Mr Street was absent when Mr Ball used the haybob with his permission.

Following a liability-only trial, the Cardiff County Court held that the Provision and Use of Work Equipment Regulations 1998 applied but dismissed the claim, finding no breach of regulation 5(1). Mr Ball appealed against that conclusion, and Mr Street cross-appealed on the applicability of the Regulations. The central issues were whether Mr Street retained sufficient control of the equipment and whether the broken spring constituted a breach despite the accident's alleged unforeseeability.

Disposition. The Court of Appeal unanimously allowed Mr Ball’s appeal, dismissed the cross-appeal and entered judgment on liability for 75% of the full value of the claim. Potter LJ gave the leading judgment. Longmore LJ agreed and added further reasons; Jacob LJ also agreed.

1. Applicability. Under regulations 3(3)(b) and 3(4) of the Provision and Use of Work Equipment Regulations 1998, the duty extends to a person who has control to any extent of work equipment in connection with a trade or business. Mr Street retained control although absent, because he retained authority over who could use the haybob, where, when and for what purpose. The arrangement was commercial, whether or not a separate charge was made for Sunday’s use.
2. Exemption. Regulation 3(5), concerning equipment supplied by sale, agreement for sale or hire-purchase, did not exempt short-term hire or loan where the owner retained control and the opportunity and duty to maintain the equipment.
3. Maintenance duty. Regulation 5(1) imposed an absolute and continuing obligation. Applying Galashiels Gas Co Ltd v Millar [1949] AC 275 and Stark v The Post Office [2000] ICR 1013, proof that a significant mechanical part failed, leaving the equipment not in good repair or efficient working order, and that the failure caused injury, was sufficient. Negligence, reasonable care and foreseeability of the precise failure or injury were immaterial.
4. Nature of the equipment duty. The duty concerned the condition of the machine’s mechanical parts and health and safety, rather than its overall productivity or ability to complete the task. The “chandelier” analogy was rejected. The reasoning in Fytche v Wincanton Logistics plc [2003] EWCA Civ 874, affirmed in Fytche v Wincanton Logistics plc [2004] UKHL 31, was confined to the distinct statutory context of personal protective equipment and identified risks.
5. Alternative reasoning. Potter LJ stated that, even if reasonable foreseeability under regulation 4(4) were relevant, injury from a powerful spring known to fracture, striking a person nearby without warning or protective casing, was reasonably foreseeable. This reasoning was expressly unnecessary to the decision.
6. Apportionment. Any breach by Mr Ball under regulation 3(3)(a) was technical and transient. He had no realistic opportunity to maintain the machine, whereas Mr Street retained overall control and maintenance responsibility. Damages were therefore reduced by 25%.

• Court of Appeal (Civil Division) — In [2005] EWCA Civ 76, the appeal was allowed, the cross-appeal was dismissed, and judgment was entered for the claimant on liability for 75% of the full value of the claim.
• Cardiff County Court — Following a liability-only trial, Mr Recorder Michael Chambers QC held that the Provision and Use of Work Equipment Regulations 1998 applied but dismissed the claim for breach of regulation 5(1). No separate citation is stated in the judgment.