Smith v Northamptonshire County Council

The Court of Appeal considered whether a wooden ramp, installed in a service-user's home by a third party (the NHS) and used by a council carer to wheel the service-user to a minibus, was "work equipment" within the Provision and Use of Work Equipment Regulations 1998 and therefore subject to the strict duties in regulations 4 and 5 (suitability and maintenance). The court held that the regulations impose strict liability only where there is a sufficient connection between the employer and the equipment, in particular some right or control enabling the employer to ensure construction, inspection or maintenance.

The court applied a purposive and practical construction of the 1998 Regulations (including regulations 2(1), 3(2)-(3), 4, 5 and 6) and rejected an overly broad test which would make employers strictly liable for installations over which they had no realistic control or right to maintain. On the facts the ramp was installed by others, used primarily by people other than the council's employees, and the council had no right to maintain it; accordingly it was not "work equipment" for the council and the appeal was allowed.

Background and parties. The claimant (Mrs Smith), employed by Northamptonshire County Council as a carer/driver, injured herself while pushing a service-user in a wheelchair down a wooden ramp outside the service-user's home. The ramp had been installed in the 1990s by the NHS and left outside on a permanent basis. The council had inspected the ramp on occasions. The claimant sued alleging breach of the Provision and Use of Work Equipment Regulations 1998, breach of the Manual Handling Operations Regulations 1992 and common law negligence; the claimant later withdrew the latter two grounds and relied on the 1998 Regulations.

Procedural posture. The case came on appeal from Northampton County Court (His Honour Judge Metcalf, judgment 14 March 2007) to the Court of Appeal.

Nature of the claim / relief sought. The claimant sought damages based on breach of the strict duties in the 1998 Regulations (notably regulation 5(1) on maintenance and possibly regulation 4(1) on suitability/construction) arising from the council's alleged failure to ensure the ramp was maintained in an efficient state and in good repair.

Issues framed by the court.

• Whether the ramp constituted "work equipment" within the meaning of regulation 2(1) and was being used "at work" for the council under regulation 3(2).
• Whether regulations 4 and 5 imposed strict liability on the council in respect of construction and maintenance of the ramp given the ramp's origin, permanence, usual use and the council's lack of control or right to maintain.
• How to construe the 1998 Regulations in light of the Directive 89/655/EEC and authority such as Stark, Hammond and PRP Architects v Reid.

Court's reasoning. The court examined the definitions in regulation 2(1) and the application provisions in regulation 3(2)-(3) and emphasised practical and purposive construction to avoid implausible results (for example, imposing strict maintenance liability on employers for third-party installations abroad on which they lack any right to work). The court drew on earlier appellate decisions (Hammond and PRP Architects v Reid) to identify factors relevant to whether an item is "work equipment": the nature of the item (tool of the trade v installation), who installed it, its permanence, the extent to which it is used by the employer's staff, and crucially the employer's control or right to maintain or inspect. The court concluded that where an installation is permanently sited on third-party premises and the employer lacks any right of control or maintenance, regulations 4 and 5 should not be read as imposing strict liability. Applying those principles, the ramp in this case was not "work equipment" of the council and regulations 4 and 5 did not impose strict duties on the council in respect of it.

Wider implications. The court acknowledged potential repercussions of an expansive construction of "work equipment" for employers sending staff to third-party premises, and endorsed an incremental, fact-sensitive approach to the boundary between equipment supplied/controlled by an employer and the structure/condition of premises supplied by others.

Appeal allowed. The Court of Appeal held that the ramp in the claimant's case was not "work equipment" of the council for the purposes of the Provision and Use of Work Equipment Regulations 1998 because the council lacked the requisite control or right to maintain or construct the ramp. Strict liability under regulations 4 and 5 was not intended to extend to third-party installations in such circumstances, and therefore the council was not liable under the Regulations for the ramp's condition.

Appeal from Northampton County Court (His Honour Judge Metcalf; judgment 14 March 2007) to the Court of Appeal, decided [2008] EWCA Civ 181.