Spencer-Franks v Kellogg Brown and Root Ltd & Ors (Scotland)

The House of Lords held that the control-room door and its closer fell within the wide definition of "work equipment" in Regulation 2(1) of the Provision and Use of Work Equipment Regulations 1998 (PUWER 1998). The court treated the words "for use at work" in Regulation 2(1) as referring to items that perform a useful, practical function for an undertaking and rejected arguments that items attached to premises or items being repaired cease to be work equipment.

The Lords further held that the definition of "use" in Regulation 2(1), which expressly includes "repairing", should be given its ordinary meaning and therefore covers both routine and major repairs. Regulation 3(3)(b) imposes duties on a person who has control, to any extent, of work equipment; the platform operator (Talisman) had such control and was therefore subject to strict duties under Regulation 4 (and Regulation 5) in relation to suitability and maintenance. Because Talisman conceded joint liability if it was liable, the House allowed a proof against both respondents rather than finally determining apportionment of liability.

The court rejected the narrower approach taken in Hammond v Commissioner of Police of the Metropolis and the Second Division that would exclude equipment forming part of premises or equipment being repaired from the scope of PUWER 1998.

The appellant, Mr Spencer-Franks, a mechanical technician employed by Kellogg Brown and Root Ltd (KBR) and working on the Tartan Alpha offshore platform, was injured while attempting to repair a malfunctioning door closer on the control room door. He lost teeth when the linkage arm struck his face. He sued his employer KBR and the platform operator Talisman Energy (UK) Ltd under the Provision and Use of Work Equipment Regulations 1998 seeking damages for breach of the statutory duties in those Regulations.

The procedural history was: the action was raised in Aberdeen Sheriff Court and, on pleas to the relevancy, the sheriff sustained KBR's plea but found Talisman subject to proof. On appeal the Second Division of the Court of Session held that the door closer was not "work equipment" within PUWER 1998 (or that the pursuer was not "using" it), dismissed the appellant's appeal and allowed KBR's appeal. The appellant then appealed to the House of Lords.

The issues for the House were (i) whether the door closer constituted "work equipment" in Regulation 2(1) PUWER 1998; (ii) whether the appellant was "using" that equipment when repairing it (given the definition of "use" which includes "repairing"); and (iii) whether the duties in Regulation 3(2) (as to employers) or Regulation 3(3)(b) (as to persons having control to any extent) applied to KBR and/or Talisman.

The House analysed the directive background (Council Directive 89/655/EEC) and the domestic Regulations. The Lords concluded that the definition of "work equipment" is broad and covers machinery, appliances, apparatus, tools or installations that perform a practical function for the undertaking, whether bolted to premises or not. The definition of "use" should be given its ordinary expansive meaning so that repairing, whether routine or major, is within it. Regulation 3(2) identifies when an employer's duties apply; Regulation 3(3)(b) subjects to duty a person who has control to any extent over work equipment. On the appellant's averments, the door and its closer were work equipment; Talisman had control of the closer and was therefore responsible under PUWER 1998; counsel for the respondents accepted that, if Talisman was liable, KBR should also be held liable. The House therefore allowed the appeal, recalled the interlocutors below and granted a proof to determine factual issues and damages.

The Lords rejected the narrower construction in Hammond and the Court of Session which would have excluded items forming part of the fabric or items being repaired from PUWER protection. The judgment noted the broader implications and the need for careful fact-finding in difficult cases about the limits of the Regulations, but it affirmed the strict statutory duties created by PUWER 1998 and the broad protective purpose behind the implementing directive.

Appeal allowed. The House held that the control-room door and its closer were "work equipment" within Regulation 2(1) PUWER 1998 and that the definition of "use" (which includes "repairing") should be given its ordinary, wide meaning so that the appellant was "using" the equipment while repairing it. Talisman, as controller of the equipment, fell within Regulation 3(3)(b) and was liable under Regulation 4 (and Regulation 5) if the closer was unsuitable or not properly maintained. Because the respondents conceded that KBR should also be held liable if Talisman was, the House ordered that the interlocutors below be recalled and allowed a proof.

Action raised in Aberdeen Sheriff Court; appeal to the Court of Session, Second Division ([2007] CSIH 23) which dismissed the appellant's appeal and allowed the cross-appeal; further appeal to the House of Lords ([2008] UKHL 46) which allowed the appeal and recalled the interlocutors.