Mason & Anor v East Potential Ltd

A non-employer who controls work equipment is subject to the Provision and Use of Work Equipment Regulations 1998 only so far as the particular regulatory duty relates to matters within that person's control. Mere possession of sound equipment, or the ability to remove it, does not create responsibility for an unsuitable use over which that person has no control.

Separate workplace, construction and work-equipment regimes should, where possible, be construed without overlap. Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992 addresses a danger inherent in the workplace. It does not regulate a danger arising from the way equipment brought into the workplace is used.

A worker employed by Satelcom Ltd suffered a spinal injury after using a five-foot ladder to service computer equipment mounted about eight feet above the floor. The ladder was sound but too short for the task. It was found in a locked server room managed by East Potential Ltd and owned by East Homes Ltd, together referred to as East.

The High Court held Satelcom liable to the worker and ordered East to contribute 25 per cent of Satelcom's liability. East appealed against the contribution order. Satelcom cross-appealed, contending that East was alternatively liable under regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992.

The central issues were whether East's limited control of the ladder attracted duties under the Provision and Use of Work Equipment Regulations 1998, and whether the workplace regime governed the worker's fall.

1. Appeal allowed and cross-appeal dismissed. Judgment was entered for East on Satelcom's contribution claim. Longmore LJ gave the leading judgment. May and Ward LJJ agreed, while adding reasons of their own.

2. Regulation 3(3)(b) of the Provision and Use of Work Equipment Regulations 1998 extends an employer's duties to a non-employer only to the extent of that person's control. The court must identify both the nature of the control and the purpose or particular matter to which it relates. A person's ability to remove equipment from premises does not, without more, subject that person to every duty imposed by regulations 4 to 33.

3. East controlled access to the room and could have removed the ladder. That control did not extend to the way in which the worker used it or to ensuring that it was suitable for his chosen task. The ladder was sound and steady. The accident resulted from its unsuitable use, rather than its physical condition. East therefore had no relevant control for the purposes of regulation 4 and committed no breach.

4. May LJ considered that regulation 3(3)(b)(i) was at least limited to control of the equipment itself, as distinct from control of its user or manner of use. Ward LJ construed regulation 3(3)(b) as applying only so far as each particular regulatory matter related to and was within the non-employer's control. Both approaches led to the same result.

5. The Workplace (Health, Safety and Welfare) Regulations 1992 did not govern the accident. Regulation 13 addresses a risk of falling caused by a danger inherent in the workplace. It does not regulate a danger arising from the manner in which work equipment happens to be used there. Health and safety regimes concerning equipment, construction work and workplaces should, where possible, be construed as occupying distinct fields.

6. In any event, the judge was entitled to find that construction work was the only activity occurring in the server room. Longmore LJ was inclined to regard “activity” in regulation 3(1)(b) as human activity. May and Ward LJJ considered that the incidental operation of computers did not amount to a separate relevant activity.

7. Because East was not liable, apportionment was academic. Longmore LJ nevertheless regarded a 25 per cent contribution from a non-negligent party committing, at most, a technical regulatory breach as excessive. May LJ would have assessed East's contribution at zero. The court also rejected a prospective order allocating a proportion of costs not yet incurred, since their just incidence could not be determined in advance.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 494, unanimously allowed East's appeal, dismissed Satelcom's cross-appeal and entered judgment for East on the contribution claim.

2. High Court, Queen's Bench Division: His Honour Judge Reddihough held Satelcom liable to the injured worker and ordered East to contribute 25 per cent of Satelcom's eventual liability. The citation of that decision is not stated in the judgment.