Smith v Northamptonshire County Council

The House of Lords considered the scope and application of the Provision and Use of Work Equipment Regulations 1998 (PUWER 1998), in particular the definitions in regulation 2(1) and the application provisions in regulation 3(2) and 3(3), and the absolute duty in regulation 5(1) to maintain work equipment. The Court held that a wooden ramp placed by the National Health Service at a service-user's home was "work equipment" for the purposes of PUWER 1998 and that, because the employer knew of and authorised the appellant's use of the ramp in order to perform her duties, the ramp was being "used by an employee at his work" within regulation 3(2). The duty in regulation 5(1) is absolute, so a latent defect was no defence; the council therefore breached regulation 5(1).

The decision turned on the construction of the application provisions rather than on a restricted meaning of "work equipment"; the majority emphasised authorisation/consent and an employer's ability to control or adopt equipment as part of its undertaking as the nexus that brings equipment within regulation 3(2). Dissenting Lords favoured a narrower test limited to equipment incorporated into or under the control of the employer's undertaking.

The appellant, a driver/carer employed by the respondent county council, was injured when an edge of a wooden ramp at a service-user's house crumbled while she was moving the service-user in a wheelchair. She sued the council for damages. The claim was originally pleaded under three heads: breach of PUWER 1998, breach of the Manual Handling Operations Regulations 1992 and common law negligence; the Manual Handling and negligence claims were withdrawn at trial and the action proceeded on alleged breach of the 1998 Regulations only.

The trial judge found the ramp to be "work equipment" within regulation 2(1) and that it was being used by the appellant at her work so that regulation 5(1) applied; he awarded judgment for the appellant. The Court of Appeal allowed the council's appeal ([2008] EWCA Civ 181), holding that the ramp was not work equipment used by the employee at work because the council had no sufficient control or maintenance responsibility.

The House of Lords framed the issues as: (i) whether the ramp was "work equipment" within regulation 2(1); and (ii) whether it was "provided for use or used by" the appellant "at work" under regulation 3(2). The council conceded that the ramp could be described as work equipment under regulation 2(1). The legal debate therefore focused on the delimiting concept in regulation 3(2): whether the mere use of equipment by an employee was enough or whether some nexus of authorisation, control or incorporation into the employer's undertaking was required.

The majority (Lord Hope and Baroness Hale) held that the Regulations applied: an employer's knowledge of, endorsement of and practical ability to prevent or provide alternatives to use of equipment establishes the requisite nexus so that regulation 5(1)'s absolute duty applies. They relied on regulation 3(3)'s concept of control to interpret regulation 3(2) and emphasised the preventive purpose of the Regulations. The majority allowed the appeal and restored the trial judge's order.

The dissenting Lords (Lord Mance, Lord Neuberger and Lord Carswell) preferred a narrower test, requiring that the equipment be incorporated into and adopted as part of the employer's undertaking (or be under its control) before the strict maintenance duties of regulations 4–6 should be imposed; on that view the appeal should have been dismissed.

Relief sought: damages for injury sustained as a result of breach of PUWER 1998 (regulation 5(1)). Issues decided: applicability of PUWER 1998 to equipment provided by a third party but used by an employee at work; the meaning of "work equipment" and the limits of strict liability under regulation 5(1). The Court's reasoning balanced the preventive purpose of the Regulations, the absolute wording of regulation 5(1), and the need to delimit employer liability by reference to authorisation/control/incorporation into the employer's undertaking.

Appeal allowed. The majority held that the wooden ramp was "work equipment" used by the appellant at work with the employer's knowledge and endorsement, so that regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 applied and imposed an absolute duty to maintain it; a latent defect was no defence. The council was therefore in breach. Dissenting members would have applied a narrower test limited to equipment incorporated into or under the control of the employer's undertaking and would have dismissed the appeal.

Trial before Judge Metcalf (claim on PUWER 1998 proceeded after withdrawal of negligence and Manual Handling claims); Court of Appeal allowed the council's appeal ([2008] EWCA Civ 181); appeal to the House of Lords allowed ([2009] UKHL 27).