Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland)

An item is “work equipment” under the Provision and Use of Work Equipment Regulations 1998 if it is machinery, an appliance, apparatus, a tool or an installation for use at work. Its status is determined before considering whether the Regulations apply to a particular employer or controller. It does not cease to be work equipment because it breaks down or is being repaired.

“Repairing” bears its ordinary meaning. It includes major and specialised repairs as well as routine or minor work. Equipment attached to an offshore installation is not excluded merely because it may also form part of the premises. A person controlling work equipment in connection with an undertaking is subject to the Regulations to the extent of that control. The precise limits of an employer’s responsibility for third-party equipment left for repair remain open.

A mechanical technician employed by Kellogg Brown and Root Ltd was injured while attempting to remove and repair the closer on a control-room door on an offshore platform operated by Talisman Energy (UK) Ltd. He sought damages from both companies for alleged breaches of the Provision and Use of Work Equipment Regulations 1998.

The sheriff held that the closer was work equipment but dismissed the case against the employer for want of control. He allowed the action against the platform operator to proceed. The Second Division of the Court of Session, [2007] CSIH 23, held that the closer was not work equipment or that the technician was not using it, dismissed his appeal and allowed the operator’s cross-appeal.

The central questions were whether the door and closer constituted work equipment, whether repairing them amounted to use, and whether the pleaded case should proceed against the employer and the operator.

1. Disposition. The House unanimously allowed the appeal, recalled the interlocutors of the Court of Session and the sheriff, and allowed a proof against both respondents. Lord Hoffmann delivered the principal speech. Lord Rodger, Lord Carswell, Lord Mance and Lord Neuberger agreed that the appeal should be allowed.

2. Meaning of work equipment. Per Lord Hoffmann, the definition in Regulation 2(1) of the Provision and Use of Work Equipment Regulations 1998 requires the court first to ask what the machinery, appliance, apparatus, tool or installation is for. If it is for use at work, it is work equipment. Regulation 3 then determines the persons and circumstances to which the statutory requirements apply. Work equipment cannot have that status in relation to one worker but lack it in relation to another.

   Lord Rodger explained that equipment ordinarily performs a useful, practical function in relation to an undertaking. Its status does not fluctuate according to the particular operation being performed upon it. Lord Carswell agreed that the definition was deliberately broad. The control-room door and its closer were apparatus or an installation used by employees in carrying out their work and therefore constituted work equipment.

3. Equipment attached to premises. Per Lord Hoffmann and Lord Rodger, no sharp or implied exclusion applied merely because an item was attached to, or could be characterised as part of, an offshore installation. The relevant offshore regulatory history supported continued protection for equipment attached to a platform. Lord Neuberger agreed that any difficult boundary between equipment and the fabric of premises did not affect this case.

4. Repairing as use. Per Lord Rodger, “repairing” in Regulation 2(1) bears its ordinary meaning. Nothing in the language or protective purpose of the Regulations confines it to routine, minor or incidental repairs. Excluding major repairs would remove protection when the safety risks may be greatest. The technician was therefore using the door and closer while attempting to repair them. Lord Carswell and Lord Neuberger agreed.

5. Persons subject to the duties. Regulation 3(2) applies the requirements imposed on an employer to work equipment provided for use or used by any employee at work. The equipment need not have been supplied by that employer. Regulation 3(3)(b) imposes corresponding requirements on a person controlling work equipment in connection with an undertaking, but only to the extent of that control. Regulation 4 protects the health and safety of any person foreseeably affected and imposes strict liability.

6. Application. Talisman controlled the closer as part of the platform and was responsible under Regulation 3(3)(b) if it proved unsuitable for safe use or repair. The respondents conceded that, if the case could proceed against Talisman, it should proceed against KBR as well. The House therefore did not finally determine the precise independent basis of KBR’s liability or the outer limits governing third-party equipment sent to an independent repairer.

1. House of Lords: The appeal was allowed unanimously. The interlocutors of the Court of Session and the sheriff were recalled, and a proof was allowed against both respondents: [2008] UKHL 46.

2. Second Division of the Court of Session: The pursuer’s appeal was dismissed and the operator’s cross-appeal was allowed because the door closer was held not to be work equipment or not to have been used within the Regulations: [2007] CSIH 23; 2007 SC 469.

3. Aberdeen Sheriff Court: The sheriff held that the closer was work equipment. He dismissed the action against the employer for want of control but allowed a proof against the platform operator.