Smith (Appellant) v Northamptonshire County Council (Respondents)

An employer’s strict duties under the Provision and Use of Work Equipment Regulations 1998 do not extend to every item used by an employee while working. Regulation 3(2) requires a specific nexus between the equipment and the employer’s undertaking.

Equipment supplied by another person must have been incorporated into and adopted as part of that undertaking. The employer’s consent to its use and control over the equipment are material. Knowledge that an employee uses an item, an ability to prohibit its use, or a safety inspection does not alone establish the necessary nexus.

Where third-party equipment remains outside the employer’s control and undertaking, its use by a peripatetic employee does not impose strict liability for a latent defect.

The appellant was employed by the respondent council as a driver and carer. Her duties included moving a wheelchair user from her home to a council minibus. She was injured when a wooden access ramp, installed by the National Health Service at the service user’s home, crumbled beneath her foot.

The claim ultimately proceeded only under regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998. The trial judge held that the ramp was work equipment used at work and found the council strictly liable. The Court of Appeal allowed the council’s appeal in [2008] EWCA Civ 181; [2008] ICR 826, holding that the ramp was outside the Regulations because the council lacked sufficient control over it.

The central issue was whether regulation 3(2) applied to equipment on third-party premises which the employer neither supplied nor maintained, but which it knew its employee used for her work.

1. Appeal dismissed by a majority. Lord Carswell, Lord Mance and Lord Neuberger held that the council was not strictly liable under regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998. The order of the Court of Appeal was upheld.

2. Per Lord Mance, with Lord Carswell and Lord Neuberger agreeing in substance, regulation 3(2) cannot be read as applying whenever an employee happens to use an item while at work. A specific nexus must exist between the equipment and the employer’s undertaking. Equipment supplied by the employer will ordinarily meet that requirement. Equipment supplied by another person must have been incorporated into and adopted as part of the employer’s undertaking, with the employer’s consent and endorsement.

3. Per Lord Mance and Lord Neuberger, the Regulations as a whole indicate that control over the equipment is important. Duties to ensure maintenance, inspection, record-keeping and safe use cannot sensibly apply without such a relationship. Control over the employee, including an ability to prohibit use, is not by itself sufficient. Otherwise an employer could become strictly liable for defective lifts, escalators, chairs and other equipment encountered at third-party premises.

4. Per Lord Carswell, Lord Mance and Lord Neuberger, the ramp was supplied by another body, stood on private premises, and remained outside the council’s ownership, possession and right of repair. The council’s inspections demonstrated care for its employee’s safety. They did not incorporate the ramp into its undertaking or give it control over the ramp. The council therefore had no liability for its latent defect under regulation 5(1).

5. Lord Hope and Baroness Hale dissented. They considered that the council’s knowledge and authorisation of the use, its ability to inspect the ramp, and its power to provide an alternative gave it sufficient control over the employee’s use. On that approach, the ramp was used for the council’s undertaking and regulation 5(1) applied.

1. House of Lords: By a majority of three to two, dismissed the employee’s appeal and upheld the Court of Appeal’s order: [2009] UKHL 27.
2. Court of Appeal: Allowed the council’s appeal, holding that the ramp was not work equipment used by the employee at work for the purposes of the Regulations: [2008] EWCA Civ 181; [2008] ICR 826.
3. County Court: Judge Metcalf held that the ramp was work equipment used at work and that the council had breached regulation 5(1). No citation is stated.