Couzens v T McGee & Co Ltd

Under regulations 3(2) and 4 of the Provision and Use of Work Equipment Regulations 1998, equipment not supplied by an employer is work equipment only if its use was expressly or impliedly permitted, or the employer must be deemed to have permitted it. Knowledge is necessary before control and permission can arise. Deemed permission may follow where the employer ought to have discovered open use through a reasonable inspection system. Foreseeability under regulation 4(4) concerns risks to health or safety; it does not replace the permission requirement. Because the employer neither knew nor ought to have known of the angle iron’s use, the Regulations did not apply. Regulations 8 and 9 therefore imposed no duty concerning it.

The appellant, a lorry driver, was injured when an angle iron kept in the driver’s door pocket caught his trouser leg and prevented him moving his foot from the accelerator. The recorder accepted that account but dismissed the claim, holding that the respondent had not breached the Provision and Use of Work Equipment Regulations 1998.

The appeal concerned whether the Regulations applied to equipment not supplied by the employer, and whether the employer’s lack of knowledge defeated liability under regulations 4, 8 and 9. The central issue was whether the respondent had permitted, or had to be deemed to have permitted, the angle iron’s use at work.

The appeal was dismissed unanimously. Lady Justice Smith gave the leading judgment, with Lord Justice Wilson and the President of the Family Division agreeing.

1. Regulation 3(2) does not make an employer strictly liable merely because an employee in fact uses equipment at work. Where the employer did not provide the equipment, it is work equipment only if the employer expressly or impliedly permitted its use, or must be deemed to have permitted it. The requirement reflects the need for the employer to have sufficient control over the equipment. This approach was consistent with Smith v Northamptonshire County Council [2008] EWCA Civ 181 and the relevant indication in Spencer–Franks v Kellogg Brown & Root Ltd [2008] UKHL 46.

2. Express permission is established by direct evidence. Implied permission may be inferred where the employer knows of the use and does nothing to stop it. Deemed permission may arise where the employer ought to have realised that the item was being used but failed to prevent that use. Mason v Satelcom Ltd and others [2007] EWHC 2540 illustrated implicit permission where an employer left an employee to select whatever ladder was available.

3. The recorder had approached the matter through reasonable foreseeability of the particular tool and its storage. That was not the correct threshold question, although the result was right. The relevant question was whether the respondent had permitted, or was deemed to have permitted, use of the angle iron. The respondent did not know of the practice. The evidence did not establish how long it had existed or whether it had been open, and the recorder had found that lorry inspections were adequate. Deemed permission therefore could not be established.

4. The angle iron was outside the Regulations. Regulation 4 consequently imposed no suitability duty in respect of it, and regulations 8 and 9 imposed no duties to provide information or training about its use or storage. There was also no duty to give instructions about using a scraper generally, since the recorder had found that such equipment was not reasonably necessary.

• Court of Appeal (Civil Division): On 19 February 2009, dismissed the appeal from the decision of Mr Recorder Hopmeier. [2009] EWCA Civ 95
• Wandsworth County Court: On 20 June 2008, dismissed the appellant’s claim for damages for personal injury.