Mason v Satelcom Ltd & Ors

An employer may be liable under the Construction (Health, Safety and Welfare) Regulations 1996 and the Provision and Use of Work Equipment Regulations 1998 where it leaves an employee to select unsafe access equipment at a customer’s premises. The duty may apply to equipment supplied or left by a third party if the employee uses it at work. The employer’s lack of direct provision or knowledge of the particular equipment does not avoid the duty where the equipment is objectively unsuitable and its use is reasonably foreseeable. A workplace used only for construction work falls outside the Workplace (Health, Safety and Welfare) Regulations 1992. An occupier or customer does not ordinarily owe a contractor’s employee a freestanding common-law duty equivalent to that of an employer. Liability may nevertheless arise under work-equipment regulations where the occupier controls the equipment.

The claimant, an experienced field service engineer, was injured while replacing a circuit card in equipment housed in a server room at a customer’s premises. He used a wooden ladder already positioned below a cabinet approximately eight feet above the floor. The ladder was too short for safe access and he fell while using both hands to insert the replacement card.

The claimant sued his employers. They brought Part 20 contribution claims against the customer and the owner and managing agent of the premises. The court tried liability and contribution as preliminary issues. The central questions were whether the employers, and either third party, were liable under the specified health and safety regulations or in negligence, and how responsibility should be apportioned.

1. Liability of the employers. The work was construction work within Regulation 2 of the Construction (Health, Safety and Welfare) Regulations 1996. Regulations 5 and 6 required suitable and sufficient safe access and measures to prevent falls. The ladder was too short, had rounded rungs and required the claimant to lean outwards. The employers were in breach because it was reasonably practicable to provide suitable access equipment.
2. The ladder was work equipment under the Provision and Use of Work Equipment Regulations 1998. Regulation 3(2) applied even though the employers had not supplied it. Where an employer leaves an employee to select equipment, or the employee uses equipment supplied or left by a third party, Regulation 4 applies if the equipment is objectively unsuitable. The employers knew that access to the eight-foot cabinet was required and were in breach of Regulation 4(1).
3. The Workplace (Health, Safety and Welfare) Regulations 1992 did not apply because, at the material time, the only activity in the room was construction work. Alternatively, the room was not under the employers’ control.
4. The regulatory breaches caused the accident. The claimant’s use of his initiative did not absolve the employers of responsibility. The employers were also negligent in failing to provide safe equipment, access and a safe system of work.
5. The claimant was one-third responsible. He was experienced and should have recognised that the ladder was too short, that he would need to lean outwards and that inserting the card might require both hands. He should have obtained suitable equipment or reported the difficulty. Judgment was therefore entered for him against the employers for two-thirds of the damages.
6. Contribution claims. Neither Redbridge nor East controlled the way in which the construction work was carried out, so neither owed duties under the Construction Regulations. Redbridge did not control the ladder or server room and was not liable under the Work Equipment or Workplace Regulations. East controlled the room and ladder, knew or should have known of the ladder’s presence, and was in breach of Regulation 4(1) of the Work Equipment Regulations. East’s breach contributed to the accident.
7. Neither third party owed the claimant a freestanding common-law duty of care in relation to the work. The defendants therefore failed against Redbridge. Under section 2 of the Civil Liability (Contribution) Act 1978, East was liable to contribute 25% of the defendants’ liability after deduction of the claimant’s one-third contributory negligence.

This was a first-instance trial of preliminary liability and contribution issues. An order of Master Yoxall dated 20 February 2007 directed those issues to be tried.