Smith v Northamptonshire County Council

The strict duties imposed by the Provision and Use of Work Equipment Regulations 1998 do not extend to every object encountered by an employee in the course of employment. An item will ordinarily constitute “work equipment” only where the employer has selected it for use and has sufficient control to discharge the duties of suitability, construction, maintenance and inspection. Selection may include consenting to an employee’s use of personal or third-party equipment. For permanent installations at another person’s premises, relevant factors include who installed the item, its permanence and usual use, the employer’s control, and any right or responsibility to repair or maintain it. Strict liability requires clear language and should not be imposed where the employer has neither the right nor the responsibility to perform the relevant obligation.

Mrs Smith, a Council carer and driver, injured herself while pushing a service user in a wheelchair down a wooden ramp at the service user’s home. The ramp had been installed by the NHS, was part of the premises, and was used for various purposes. The Council inspected it but had no right or practical ability to repair or maintain it.

At first instance, His Honour Judge Metcalf held that the ramp was “work equipment” under the Provision and Use of Work Equipment Regulations 1998 and that the Council was strictly liable for its condition. The claimant’s alternative claims under the Manual Handling Operations Regulations 1992 and at common law were withdrawn. The Council appealed, principally on the construction of “work equipment” and “used at work”.

1. Appeal allowed. Judgment was entered for the Council. The ramp did not constitute “work equipment” for the purposes of the Provision and Use of Work Equipment Regulations 1998.
2. The statutory definitions could not be applied mechanically. The two critical questions were whether the item was work equipment and, if so, whether it was being used “at work”. Those questions could overlap because the place, installer and purpose of an installation may determine both its character and its use.
3. Work equipment subject to strict liability must ordinarily have been selected by the employer for the employee’s use. Selection may consist of consenting to the use of equipment owned by the employee or supplied by a third party. That principle may readily apply to tools of the trade, such as a power saw used with the employer’s consent.
4. Permanent or long-term installations at another person’s premises require closer analysis. The employer’s control is a particularly important factor. Liability for construction or maintenance will not ordinarily arise where the employer has no right to carry out the work, no responsibility for it, and would need the owner’s consent before doing it. The inspection undertaken by the Council was explicable by its common law duty of care and did not amount to control sufficient to attract strict liability.
5. The relevant factors included the ramp’s installation by others, its permanence, its predominant use by persons other than Council employees, the Council’s lack of ability to maintain it, and its ordinary character as part of the premises. Mobility and the Council’s choice to use it did not alter that conclusion. The court declined to impose strict liability under regulations 4 or 5 on those facts.
6. Lord Justice Richards agreed, emphasising the need for incremental, case-by-case development and the absence of true control. Lord Justice Rimer agreed that an item will ordinarily be work equipment only where the employer has sufficient control to perform the statutory obligations. The court did not decide the full scope of the Regulations for all peripatetic employees or personal equipment.

• Court of Appeal (Civil Division): The appeal from the Northampton County Court was allowed and judgment was entered for Northamptonshire County Council.
• Northampton County Court: His Honour Judge Metcalf, in a judgment handed down on 14 March 2007, held that the ramp was work equipment and that the Council was in breach of the strict statutory duty to maintain it.