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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mason & Anor v East Potential Ltd [2008] EWCA Civ 494 (14 May 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/494.html Cite as: [2008] EWCA Civ 494, [2008] ICR 971

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE REDDIHOUGH (sitting as a High Court Judge)
HQ05X02516

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/05/2008

Lord Justice Longmore:

Introduction

1. On 28 August 2002 Mr Mason suffered spinal injury when he fell from a ladder which he was using for the purpose of replacing a computer card in an installation, known as a Megapac, located in a cabinet about 8 feet from the ground. The ladder was only 5 feet high and he had to lean out from the front of the cabinet and then, at the same time, lean into the cabinet. That was easy enough when he could use one hand to hold onto the cabinet but he needed two hands to insert the new card into the Megapac. While using both hands and in the awkward position he had to sustain in doing so, he overbalanced, fell on his feet and injured his spine. There was nothing wrong with the ladder as such, although it did have rounded rungs rather than flat ones. The real trouble is that it was just too short for the operation for which it was needed.
2. On 24 July 2007 His Honour Judge Reddihough sitting as a judge of the High Court in London found Mr Mason's employer, Satelcom Ltd, liable to him for breach of statutory duty and also for negligence at common law for failure to provide a safe system of work. The relevant statutory duty was to be found in the Construction (Health, Safety and Welfare) Regulations 1996 and the Provision and Use of Work Equipment Regulations 1998 to which I shall refer as the Construction Regulations and the Equipment Regulations respectively. The Construction Regulations required that there be "suitable and sufficient safe access and egress from every place of work" and that "suitable and sufficient steps shall be taken to prevent… any person falling". The judge held that the ladder was too short to provide proper and safe access to the cabinet and that Satelcom were thus in breach of the Construction Regulations. He further held that the ladder was work equipment for the purpose of the Equipment Regulations and that it was reasonably foreseeable that the ladder's shortcomings would affect the safety of any person using the ladder to carry out work in the cabinet so that the ladder was unsuitable for the purpose of the Equipment Regulations. The conclusion that Satelcom did not provide Mr Mason with a safe ladder meant, also, that they did not provide a safe system of work and that they were therefore also liable for negligence at common law. He dismissed a further claim by Mr Mason that Satelcom were liable under a third set of regulations in relation to the Workplace (Health, Safety and Welfare Regulations 1992) ("the Workplace Regulations") because they did not apply at times when the Construction Regulations applied.
3. So far, so comparatively straightforward. The curiosity of the case was that the ladder used by Mr Mason was a ladder which he found in the room in which the cabinet was situated. His employers had not provided him with a ladder for his own use and he did not seek to obtain a longer ladder himself. He just used the unsuitable ladder which presented itself in the room where the cabinet was. On the facts, the judge found that he was one-third to blame for the accident and neither Mr Mason nor Satelcom have sought to appeal any part of the judge's decision in so far as it relates to them. This appeal arises from the Part 20 proceedings instituted by Satelcom against the owners of the cabinet and those responsible for the room in which it was situated.
4. The cabinet, and the Megapac unit which was installed inside it, were owned by the London Borough of Redbridge ("Redbridge") who were the underlessees of part of a building known as Redbridge Foyer from which they operated a service called Ilformation for the benefit of the young people of Ilford. The Megapac unit was not, however, in one of the rooms of which they had the underlease but, by an informal agreement, was in another nearby room (called the server room) in the building which was owned by East Homes Ltd and managed by East Potential Ltd. Satelcom sought contribution against Redbridge and against East Homes and East Potential. Their claim against Redbridge failed because the ladder was not under the control of Redbridge, but their claim succeeded against East Homes and East Potential. No distinction between these two entities was made at trial and I shall refer to them, as the judge did, as "East". The basis for the judge's decision, that East was bound to contribute to the sum for which Satelcom will in due course be liable to Mr Mason (damages have not yet been assessed), was that East would have been liable to Mr Mason under the Regulations in the same way as his employer Satelcom. That was because, broadly, non-employers who controlled work equipment were liable under the Equipment Regulations for its foreseeable non-suitability just as much as employers were. The judge held that the amount of East's contribution should be 25% of whatever sum it was for which Satelcom would eventually be liable to pay Mr Mason.

Findings of Fact

5. For the purpose of this appeal the following findings of the judge are important:-

i) When Mr Mason arrived at the building to replace the computer card a member of staff who was employed by East unlocked the server room to let him in;

ii) Mr Mason noticed the ladder leaning against the wall under the cabinet and "realised that he would need to use this to gain access to the cabinet", he did not ask anyone for permission to use the ladder;

iii) The ladder itself was reasonably sturdy and steady;

iv) Mr Mason did not move the ladder but simply used it in the position in which he found it;

v) The only keys to the server room were in East's possession;

vi) East were aware of the ladder's presence in the server room;

vii) A ladder was at various times kept in the server room which anyone might use to gain access to the cabinet; it was not always the same type of ladder and had, at one time, been an A-frame step-ladder;

viii) Satelcom had been responsible for the installation (with East's agreement) of Redbridge's Megapac unit in the cabinet although East had, of course, agreed to the arrangement; Satelcom were aware that a ladder would be required for access;

ix) The cabinet had been positioned high up on the wall so as not to be in East's way.

x) East had no interest of their own in the work being carried out on what was Redbridge's equipment in the server room;

xi) East had control of the ladder in the server room in the sense that they could have removed the ladder at any time but they did not control the way in which Mr Mason used the ladder.

Submissions

6. East now accept that the ladder was "work equipment" within Regulation 2(1) of the Equipment Regulations but submit:-

i) They did not have control of the ladder for the purpose of Regulation 3(3) (b) (i);

ii) Even if they did have some control of the ladder, that control was a limited control and did not extend to controlling the use of the ladder; there was no breach of the Regulations because the ladder was not unsuitable for the purpose of Regulations 4(1) and 4(4); it was not reasonably foreseeable that it would be used for an unsuitable purpose;

iii) Any breach of the regulations did not cause the accident;

iv) The apportionment should have been less than 25%.

7. Satelcom challenges all these submissions; they say that the judge was right to hold that East had a sufficient degree of control of the ladder to render the Equipment Regulations applicable to them and that East were in breach of these Regulations. They further submit (by way of cross-appeal) that, if that is wrong, the Workplace Regulations apply so as to render East liable for a breach of Regulation 13 entitled "Falls or Falling Objects". The irony of this cross-appeal is, of course, that at trial they defeated the claim of Mr Mason presented under the Workplace Regulations; having achieved that success they now seek to argue that, in fact, they ought to have been held liable so that they can say that East are also liable and thus have to contribute to the damages that Mr Mason will ultimately be awarded.

The Equipment Regulations

8. I deal first with East's appeal and for that purpose it is necessary to set out the relevant provisions of the Equipment Regulations. It is relevant to observe that the source of all three sets of the Regulations that I have so far mentioned is to be found in corresponding European Directives. As explained by Lord Hope of Craighead in Robb v Salamis [2006] UKHL 56; [2007] 2 All ER 97 para. 10, there is a Framework Directive 89/391/EEC which has spawned six individual "daughter" Directives of which the Work Equipment Directive 89/665/EEC is one. It is pursuant to this Directive that the Equipment Regulations have been enacted, but since there has been no suggestion that the Directive has been inadequately or inaccurately transposed into English Law, I will quote from the Equipment Regulations themselves. The relevant provisions are:-

"2. Interpretation

"Work equipment" means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)"

3 Application

(1) These Regulations shall apply –

(a) in Great Britain; and …….

(2) The requirements imposed by these Regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work.

(3) The requirements imposed by these Regulations on an employer shall also apply –

a) to a self-employed person, in respect of work equipment he uses at work;

b) subject to paragraph (5), to a person who has control to any extent of –

i. work equipment;

ii. a person at work who uses or supervises or manages the use of work equipment; or

iii. The way in which work equipment is used at work,

and to the extent of his control.

(4) Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)….

Suitability of work equipment

4. (1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

(4) (a) In this regulation "suitable" means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person.

(b) …

Maintenance

5. (1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

Control

9. Primarily, the Equipment Regulations apply to employers in respect of work equipment used at work (Regulation 3(2)). But by Regulation 3(3) they also apply "to a person who has control to any and to the extent of his control". Mr Purchas QC submitted that, even if East had control of the ladder in the sense that they could have removed it, that was the extent of their control over the ladder. Once the room was unlocked, Mr Mason used the ladder in the room but did not feel the need to ask (nor did he actually ask) the permission of anybody in East or anybody else to use the ladder. He used it in his own way for his own purpose and East had no control over his decision whether the ladder was to be used or not. To that decision the regulation did not, therefore, apply.
10. Mr Russell for Satelcom submitted that East had control of the ladder at the time when Mr Mason decided to use it because it was in a locked room to which only East had access and which East had to unlock for Mr Mason to obtain access to the cabinet. There was therefore control "to an extent of work equipment" within Regulation 3(3)(b)(i). That was said to be "total" control but even if it was not "total" it was control to an extent and that was all that was necessary before one went on to consider the duty imposed on the person who had that control under the subsequent regulations and Regulation 4 in particular. Mr Russell relied on the findings set out in paragraph 5 above and added that there had been evidence that it was East's policy not to keep ladders in rooms at the premises. As to that I would observe that it was not a policy complied with at the relevant time.
11. Importantly neither Mr Mason nor Satelcom themselves have suggested (at any rate in this court) that East had control of the way in which the equipment was used at work because that was for Mr Mason as an experienced worker to decide; the result of that was, as the judge held in para. 59, that no reliance was or could be placed on Regulation 3(3)(b)(iii).
12. As counsel's submissions make clear, the phrase "control to any extent" and "to the extent of his control" are crucial. "Control" is a word of differing shades of meaning according to its context but the fact that East did not control the way in which the ladder was used shows that, contrary to Mr Russell's initial submission, they did not have total control. He refined that submission by saying that East had "sufficient control" of the ladder for the regulations to apply. But since they only apply "to the extent of that control" that submission does little more than assert what it wishes to prove.
13. In my judgment one has to ascertain in relation to a non-employer, whether there was a purpose for which he has such control as he has. The evidence deployed before the judge did not enable him to make any findings about the ownership of the ladder; it might have belonged to East but could equally have belonged to Redbridge or have been brought onto the premises by an unknown workman. It was no doubt this among other things that led him to conclude (para. 63) that East had control of it in the sense that they could have either removed the ladder to another part of the building or elsewhere or placed a notice of some kind upon it. I agree with the judge that they did have control to that extent but that was the limit of their control and it does not follow as the judge seems to have thought (para. 64 and 74) that the Equipment Regulations then apply; that is because the Regulations only apply "to the extent of" East's control. It is this concept of the "extent of control" that makes it necessary to ascertain whether there was a purpose for which the control was exercised. If East had owned the ladder it might be possible to say (as the court was able to say in Ball v Street [2005] EWCA Civ 76 para 69) that control existed (inter alia) for the purpose of maintaining the ladder in the state in which it needed to be in order to be an effective ladder. But in the absence of a finding that East owned the ladder, it is difficult to say what the purpose of East's control was beyond the purpose of ensuring that it did not get in anyone's way.
14. It is important in this context to be aware that the Equipment Regulations impose a large number of obligations both on those who are employers in law and on persons having control of equipment to any extent to the extent of that control. Those obligations include the obligations of suitability and maintenance in Regulations 4 and 5 as set out above, but extend considerably further to obligations of inspection, imparting health and safety information and instructions and training of those who will use the work equipment in Regulations 6, 8 and 9 respectively. It would border on the absurd to say that East had all these obligations as well as obligations in relation to the suitability of equipment in respect of a ladder which just happened to be on their premises; yet the logic of Mr Russell's argument applies to those other regulations just as much as to regulation 4. He submitted that health and safety so dominated our national life that the Regulations were, indeed, intended to go that far but I, for my part, cannot accept that submission.
15. If it is right that one should try to discover the purpose for which East had such control of this ladder as they had, one can at least say negatively that it was not for the purpose of inspecting this ladder or training users (who were not their employees) in relation to its use, nor for the purpose of imparting information and instructions in relation to it. Likewise it was not for the purpose of ensuring that the ladder was constructed or adapted (within Regulation 4(1)) so as to be suitable for the purpose for which it was used. East could not know or reasonably anticipate that Mr Mason would use a perfectly ordinary ladder for a purpose for which it was never designed.
16. One can therefore resolve this aspect of the appeal by saying either that East were not persons having control of the ladder to any relevant extent with the result that they did not come within Regulation 3 at all; alternatively one can say that, although they come within Regulation 3, the extent of their control did not reach as far as determining the suitability of the ladder with the result that there was no breach of Regulation 4. If it mattered, I would prefer to adopt the latter approach and say simply that Satelcom has not shown there is any breach of Regulation 4, but it certainly does not matter for the purpose of this appeal.

Amount of contribution

17. In these circumstances it is not necessary to say anything about the assessment of the contributions but I shall say a word about it after considering the cross-appeal.

Cross Appeal

18. This requires consideration of both the Construction Regulations and the Workplace Regulations because Satelcom need to establish that Regulation 13 of the Workplace Regulations applies to the server room which, as a room, was undoubtedly a workplace in the control of East as owner/occupier. These regulations, however, do not apply by Regulation 3(1)(b) to

"a workplace where the only activity being undertaken is construction work within the meaning assigned to that phrase by regulation 2(1) of the [Construction Regulations]."

At the relevant time Mr Mason was, of course, maintaining and/or repairing the Megapac unit in the cabinet in the server room. It is accepted that that was construction work but Satelcom submit that it was "not the only activity being undertaken" in the server room since, although Redbridge's computer unit had been turned off or closed down, there were other computer units in the server room belonging to East which were continuing to function. On that basis, say Satelcom, it was the Workplace Regulations which covered the server room and not the Construction Regulations. The relevant Workplace Regulations provide:-

"4(2) Subject to paragraph (4), every person who has, to any extent, control of a workplace, modification, extension or conversion shall ensure that such workplace, modification, extension or conversion complies with any requirements of these Regulations which –

(a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion;

(b) is in force in respect of the workplace, modification, extension, or conversion; and

(c) relates to matters within that person's control.

13. Falls or falling objects

(1) So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3).

(2) So far as is reasonably practicable, the measures required by paragraph (1) shall be measures other than the provision of personal protective equipment, information, instruction, training or supervision.

(3) The events specified in this paragraph are:-

(a) any person falling a distance likely to cause personal injury;

(b) any person being struck by a falling object likely to cause personal injury. …"

19. The first question is, therefore, whether the Workplace Regulations apply to falls from ladders at all and the second question is whether, if they do, it is those Regulations or the Construction Regulations which applied to the server room at the relevant time.
20. In order to answer the first question it is necessary to consider the inter-relationship of the three sets of Regulations. It is clear that a ladder is work equipment and, thus, liability for falls from ladders will be properly considered in the context of the Equipment Regulations. Is it also contemplated that falls from ladders should be considered under the Construction Regulations and/or the Workplace Regulations as well? If so, the matter becomes unnecessarily complex and, if Satelcom is right in its contention, the outcome is somewhat odd. That is because, if a fall from a ladder occurs, the Construction Regulations have nothing to say about such an accident whereas the Workplace Regulations do. Why should that be so?
21. To my mind the answer is that, where possible, the Regulations should not be construed so as to overlap. Dangers of work equipment should be dealt with under the Equipment Regulations; dangers in construction work should be dealt with under the Construction Regulations and dangers in the workplace should be dealt with under the Workplace Regulations.
22. This becomes a little clearer, at any rate in relation to ladders, if one looks at the Workplace Directive 89/654/EEC, Article 4 of which required workplaces in use before 1^st January 1993 to satisfy (after 3 years had elapsed) the safety and health requirements laid down in Annex II. The 10^th requirement of that Annex is the origin of Regulation 13; it provides:-

"Danger Areas

If the workplace contain danger areas in which, owing to the nature of the work, there is a risk of the worker or objects falling, the places must be equipped as far as possible, with devices preventing unauthorised workers from entering those areas. Appropriate measures must be taken to protect workers authorised to enter danger areas. Danger areas must be clearly indicated."

This relates only to danger areas and neither the ladder itself nor the server room could be called a danger area on the facts of the present case.

23. The title of Regulation 13 is "Falls or Falling Objects" and is derived from the words "risk of the worker or objects falling" in the Directive. The measures required to be taken are measures to prevent "any person falling a distance likely to cause personal injury". In my judgment that refers to the risk of falling as a result of a danger inherent in the workplace not a danger inherent in some piece of equipment which happens to be brought into the workplace. That is much more naturally dealt with by the Work Equipment Regulations than the Workplace Regulations; this is shown by reference both to the terms of the Directive itself and to the fact that the Construction Regulations have no reference to falls or falling objects. Although ladders must often be used in construction work, the Construction Regulations are content to have falls from ladders dealt with by the Work Equipment Regulations. The same should, in my judgment, go for the Workplace Regulations.
24. Mr Russell submitted that the above conclusion could not be correct because as from 6^th April 2005 (nearly 3 years after the accident in this case) Regulations 13(1) – 13(4) of the Workplace Regulations were revoked and replaced by the Work at Height Regulations 2005 which specifically mention ladders in Regulation 8(e) and Schedule 6. But it cannot be right to construe relevant regulations by reference to later revocation and replacements. In any event, it could not be conclusive of anything; if a similar accident occurred to-day, it might well be arguable that the Work at Height Regulations, being more specific as to ladders, should be the relevant regulation to the exclusion of the Equipment Regulations but that, happily, need not be decided now.
25. I would therefore, dismiss the cross-appeal on the basis that the Workplace Regulations do not apply to regulate the use of the ladder on the facts of this case.
26. Even if that is wrong, Mr Russell has to surmount the further hurdle of persuading the court that construction was not the only activity being undertaken in the server room at the relevant time. As to this the judge said in paragraph 49:-

"At the time leading up to and when the claimant's accident occurred, the only activity being undertaken in the server room was the claimant's construction work."

Mr Russell invited us to construe this as meaning that the only human activity being undertaken was the construction work and then to say that the judge had misconstrued Regulation 3(1)(b) of the Workplace Regulations as referring merely to human activity when in fact the other computer units in the server room (apart from Redbridge's) were, as counsel put it, "whirring away". For my part, I decline to construe the judgment as referring only to human activities; I much prefer to regard it as a finding of fact that there was in fact, no activity and say that that was a finding to which the judge was entitled to come.

27. It is not necessary for us to decide whether Regulation 3(1)(b) refers only to human activity when it refers to "a workplace where the only activity is being undertaken is construction work". I am inclined to think that the regulation does contemplate human activity since a workplace is, by definition, a place where work is carried out and only needs to have regulations made in relation to it because it is human beings who carry out the work there.
28. As it is I would dismiss the cross-appeal.

Apportionment

29. As I have said it is not necessary to consider the judge's apportionment in this case but I would not like it to be thought that 25% is necessarily the right apportionment in a case such as this where there was a considerable degree of negligence on the part of Satelcom, on the one hand, in failing to provide ladders for their employees to carry with them when they made visits to computer units in their client's premises, and, on the other hand, only at best a technical breach of health and safety regulations on the part of East who were not in any way negligent. Without saying that it is easy to apportion damages between a defendant who is negligent and a defendant who is in breach of a health and safety regulation but not in any way negligent, to require a non-negligent defendant to bear as much as 25% of the loss is, in my view, excessive. The judge may have thought that East was to some extent to blame by leaving the ladder in its position directly under the cabinet. But it was with respect not clear on the evidence that it was East who did leave the ladder in that position; it could easily have been the workman/employee of some contractor whom East would admittedly have let into the room. For my part, I have difficulty in attributing any blameworthiness to East (I deliberately avoid the word "negligence" in the context of apportionment pursuant to the Civil Liability (Contribution) Act) and, if that is right, although a true breach of a safety regulation is significant, I cannot think it right that East should bear as much as 25% of the loss.

Prospective Costs

30. Finally Mr Russell submitted that the judge should have made an order not merely that East should pay 25% of the damages to be assessed but also that they should pay the equivalent proportion of the costs of the assessment. This was said to be just and convenient and would avoid the expense of any further application to the court at the time of assessment. Mr Russell cited no precedent for any such order. I do not find that surprising. It is not clear what the jurisdictional basis of any such order would be but I am, in any event, clear that it would be inappropriate. One cannot determine justly the incidence of costs which have yet to be incurred. Satelcom might incur only a small amount of costs, by agreeing to the first proposal that is made but East must be permitted to argue that that would be to settle too soon. Conversely Satelcom might incur large amounts of costs by failing to make a reasonable offer at appropriate time or failing to accept a claimant's sensible proposal. These questions cannot be pre-empted at this stage. No doubt the good sense of the parties will operate, to settle the case at the "right" time after incurring the "right" amount of costs as must happen in the great majority of these sorts of cases. If either party is said to be acting unreasonably the court will have to decide.
31. As in fact Satelcom will not be recovering any contribution to their liability to pay damages to Mr Mason, they will, of course, be at their own risk as to costs in any event.

Conclusion

32. As it is I would allow the appeal, dismiss the cross-appeal and enter judgment for East against Satelcom on the contribution claim.

Lord Justice May:

33. There is a risk that lawyers, including judges, being obsessed with the meaning of abstruse secondary legislation, may lose sight of the real world. In this case, the claimant was injured by falling off a short, well constructed and well maintained ladder, because he foolishly chose to use the ladder in circumstances for which, and in a way in which, it was unsuitable. His employers rightly bore a major responsibility for the accident, because they had not provided him with, or insisted that he acquired, a suitable free- standing aluminium step ladder to take around to his work in his car. He himself rightly bore a significant degree of responsibility, because his use of the ladder was foolish. The proposition that East should also be partly responsible for the accident, by strict application of a regulation mainly about employers, whose meaning took more than a day of the court's time to try to understand, is in the real world close to being absurd. East were not Mr Mason's employer; were not at fault; and had nothing to do with the accident, or the task which the claimant was performing, or the computer equipment on which he was working, beyond the facts that the equipment was, by agreement with Redbridge, on their premises and that the ladder happened to be in the room where the equipment was. If it were necessary to hold East technically responsible under the regulations, I would assess their real contribution to the accident as zero. The real fault lay between Satelcom and Mr Mason himself. I do not consider that the judge's decision that East were, as between themselves and Satelcom, 25% responsible was within the proper bounds of the statutory discretion.
34. But I agree that this appeal should be allowed, and the cross-appeal dismissed, for the reasons given by Longmore LJ, whose account of the facts and circumstances of the appeal I gratefully adopt. I agree that the requirements imposed by the Provision and Use of Work Equipment Regulations 1998 did not apply to East in the circumstances of this case. I shall state shortly my essential reasons for agreeing with Longmore LJ about this in my own words.
35. Regulation 3 defines the circumstances in which the Work Equipment Regulations are to apply. They apply firstly and mainly to work equipment provided for use or used by an employee at work, and the requirements are imposed on employers. Most of the substantive regulations, beginning with regulation 4, start with or contain the words "Every employer shall ensure …". Regulation 3(3), however, brings people who are not employers within the application of the regulations in these terms:

"The requirements imposed by these Regulations on an employer shall also apply –

(a) to a self-employed person, in respect of work equipment he uses at work;

(b) subject to paragraph (5), to a person who has control to any extent of –

(i) work equipment;

(ii) a person at work who uses or supervises or manages the use of work equipment; or

(iii) the way in which work equipment is used at work,

and to the extent of his control."

36. Satelcom's case is that East were "a person who [had] control to any extent of work equipment", that is the ladder. The ladder was in the room in which Mr Mason used it. East had control of the ladder because it was in their room, which they had to unlock. The extent of their control, says Mr Russell, was total because they could have declined to unlock the room, or, more realistically, because they could have simply removed the ladder. By the same token, I suppose, Mr Russell would have submitted that the regulations would have applied if Mr Mason had chosen to use, and had fallen off, a sound but unsuitable chair which happened to be in the room and which East, having control of the chair, had failed to remove. This would, in my view, be both absurd in the real world and, happily for good sense, a misapplication of regulation 3(3).
37. The regulation only applied to East, if at all, "to the extent of [their] control". If the ladder had been defective and the defect had contributed to Mr Mason's accident, East's control might have extended to their ability to mend the ladder. But the ladder – the work equipment – was not defective and nothing to do with it as a ladder caused Mr Mason to fall off it. I am inclined to think that regulation 3(3)(b)(i) applies only to the physical state of the relevant work equipment, but it is certainly limited to the extent to which the person has control of the equipment itself, as distinct from the way in which it is used. Regulation 3(3)(b)(i) does not stand alone. There are also regulations 3(3)(b)(ii) and (iii). Thus control of the work equipment itself will not extend to control of the person at work who uses it or supervises or manages its use (3(3)(b)(ii)); nor to the way in which it is used at work (3(3)(b)(iii)). The cause of this accident was the way in which Mr Mason foolishly chose to use this perfectly sound ladder, over which East had no control. Thus the regulations did not apply to East, and good sense prevails.
38. I agree that the Workplace Regulations did not apply for the reasons given by Longmore LJ. Had it been necessary to do so, I would have held that "activity" in regulation 3(1)(b) of the Workplace Regulations does not embrace the incidental working of a computer which happens to be in the workplace.

Lord Justice Ward:

39. The Provision and Use of Work Equipment Regulations 1998 ("the Regulations") are not easy to construe. "Employer" is defined in Regulation 2 in this way, and one should not forget the introductory proviso::

"In these Regulations, unless the context otherwise requires – "employer" except in Regulation 3(2) and (3) includes a person to whom the requirements imposed by these regulations apply by virtue of Regulation 3(3)(a) and (b)."

Consequently if a person is an employer as so defined, that person is subject to each and every one of the very varied duties prescribed in Regulations 4 to 33. As I pointed out in the course of argument, this would mean that East would be in breach of their duties, and moreover liable to prosecution, for failing, for example, to have available to the claimant "adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment" as required by Regulation 8 and, as required in Regulation 9, for failing to "ensure that all persons who use work equipment have received adequate training for the purposes of health and safety." They would owe him these duties even though they might not even know that he was on the premises. Acknowledging to the full the importance of health and safety at work, but bearing in mind the real world in which the Regulations are to operate, this wide construction goes too far, produces results which can properly be castigated as absurd and so it must be wrong.

40. How then does one construe Regulation 3? Where indeed does one start? The answer to that question must be with the fons et origo (so much more expressive than "source") of the Regulations, namely, the European Directives. Council Directive 89/391/EEC of 12^th June 1989 provides a general framework to serve as a basis for more specific Directives covering all risks connected with safety and health at the work place and particularly, as identified in the Annex, with work equipment. The objective of this Directive is, as Article 1.1 records, "to introduce measures to encourage improvements in safety and health of workers at work." Even though the general purpose to be served is the protection of safety and health, those to whom it is directed are the employer and the worker defined in Article 3 as follows:

"For the purposes of this Directive, the following terms shall have the following meanings:

(a) worker: any person employed by an employer, including trainee and apprentices but excluding domestic servants;

(b) employer: any natural or legal person who has an employment relationship with the worker and has responsibility for the undertaking and/or establishment".

Under the Directive, the employer - Satelcom - would be responsible for the claimant and to him, and East would not fall within its purview at all.

41. The relevant "daughter" Directive, the Work Equipment Directive 89/655/EEC of 30^th November 1989 sets out in the preamble its purpose which is expressed to be that :

"A compliance with the minimum requirements designed to guarantee a better standard of safety and health in the use of work equipment is essential to ensure the safety and health of workers."

The general obligation imposed on the employer is set out in Article 3:

"1. The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety and health."

But the same European definitions of employer and worker apply and once again East would not have been caught by these provisions.

42. The United Kingdom's obligation was of course to carry the provisions contained in these Directives into our domestic law. Compliance could have been achieved merely by adopting the European definitions of employer and worker/employee and there was no legislative imperative requiring the application of the Directive to those who were not the employers of the workers. If there is ambiguity in the meaning of Regulation 3, I conclude that the ambiguity can be resolved by limiting the ambit of Regulation 3(3) to those who are as close to the real employer of the workers as can be contrived. There is certainly no need for a wide and generous extension.
43. So to Regulation 3. Regulation 3(2) imposes the requirements of the regulations "on an employer in respect of work equipment … provided for use or used by an employee of his at work", with emphasis added by me. This, therefore, reflects the Directive's scope of application to the employer and his workers. But Regulation 3(3) extends the application of the requirements:

"(a) to a self-employed person, in respect of work equipment he uses at work;

(b) subject to paragraph (5) [which does not apply to the facts of this case], to a person who has control to any extent of –

(i) work equipment;

(ii) a person at work who uses or supervises or manages the use of work equipment; or

(iii) the way in which the work equipment is used at work,

and to the extent of his control."

Regulation 3(4) adds:

"Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on of a trade, business or other undertaking (whether for profit or not)."

44. I confess I am baffled by (a): if, working for himself and by himself as a sub-contractor on a building site, a carpenter uses his own bench saw at work, does he owe the whole raft of duty set out in Regulations 4 to 33 to others, and if so to which others, or just to himself? Fortunately I do not have to answer those problems.
45. Understanding Regulation 3(3)(b) is difficult enough. There are three categories of deemed employer. In each category two questions arise, the first being whether the person had any control ("control to any extent") of (1) the work equipment, or (2) the person using that equipment, or (3) the way in which it is used. The second question one has to consider is the extent of that control. In this case it is submitted that East undoubtedly had some control over the ladder because it was in a locked room in their premises. They could have removed it from the premises altogether. They could have locked it in a cupboard. They could have afforded access to the room but forbidden use of the ladder. I can see some force in the argument that since their control arises from having possession of the ladder, they can be said to have had full control over it because they could have dealt with it as they wished (subject only to the greater right of its true owner). On that basis, East is deemed to be an employer which is the very result I have castigated as absurd.
46. One way out of the absurdity is to transpose the words "to the extent of their control", into each and every one of the duty sections to the effect that the deemed employer owes the duty only to the extent that he had sufficient control to justify the imposition of the specific duty in each case. The difficulty about this transposition is that the language simply does not support the argument. He either is or is not an employer as defined in 3(3)(b). If he is, the duties are owed and there is no room for qualification.
47. Nonetheless one can see the good sense of such a construction. Much of the same purpose is achieved in other allied Regulations. For example Regulation 4 of the Workplace (Health, Safety and Welfare) Regulations 1992 apply where:-

"Every person who has, to any extent, control of a workplace … shall ensure that such a workplace … complies with any requirements of these Regulations which –

(a) applies to that workplace …;

(b) is in force in respect of the workplace …; and

(c) relates to the matters within that person's control."

In other words the regulations apply only to such requirements which relate to matters within the deemed employer's control.

48. Similarly Regulation 4 of the Construction (Health, Safety and Welfare) Regulations 1996 is even easier to understand:

"It should be the duty of every person … who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these Regulations in so far as they relate to matters which are within his control."

In other words the duty is again imposed only to the extent that the work is under the deemed employer's control.

49. There is an echo of this in Regulation 3(3)(b) (ii) and (iii). Under (b) (ii) liability is imposed if the person has effective control over those who use the work equipment and under (b) (iii) control over the way in which the equipment is used.
50. In my judgment Regulation 3(3)(b) (iii) is critical to the correct solution in this case. East had no control over the unsuitable way this ladder was used. They do not fall within 3(3)(b) (iii) at all. So why should they creep into Regulation 4 for essentially the very same use-related reason, namely the failure to ensure that the ladder was suitable for the purpose for which it was used. It simply does not make sense to exclude them from the front door but bring them in through the back door.
51. In my judgment one must look at the wider purpose of these Regulations. In essence they are directed at the true employer/employee relationship where the employer has control over the work equipment itself, over the workers who are to use it, and over the way it is to be used. The quasi employer's responsibility should be seen in the same way. In other words if the equipment itself poses a threat to the health and safety of those who use it, those who control the equipment can expect to be responsible for the safe working of the equipment. That is the purpose to be served by 3(3)(b)(i). Regulations 5 (Maintenance of the Equipment), 11 (Dangerous Parts of Machinery) and 12 (Protection against Special Hazards emanating from the Equipment) are the paradigm examples where it is just, fair and reasonable to impose a duty on the controller of the equipment and so satisfy the purpose of this extension of responsibility beyond that owed to the worker by his true employer. If someone outside a strict employer/employee relationship nonetheless somehow has control over whomsoever may use the equipment or over the way the equipment is used, he too can expect to protect the health and safety of the worker: 3(3)(b) (ii) and (iii) cover that mischief.
52. Whilst I am not convinced that one can read words into each of the duty regulations 4 to 33, it is in my judgment permissible to read words into regulation 3(3)(b) to enable a construction to be given which will make sense to those in the trade or business or other undertaking (the class covered by 3(4)) and still give sufficient protection to the workers for safety is of concern to us. I believe one can achieve this by adding after "and to the extent of his control" the words "in so far as the particular matters hereinafter set out relate to and are within his control". In that way one can focus on the scope of his control for the particular purpose for which he has to exercise that control.
53. So one asks, "Did East have control of the ladder so as to be able to control whether it would only be used in a suitable way?" Answer: "No". East's control of the equipment posed no risk because the ladder qua ladder was a perfectly good ladder. It only became unsuitable because the claimant used it in a silly way.
54. I have little to add to the other matters raised on this appeal. It seems to me to be perfectly obvious that the different sets of Regulations should not be construed so as to overlap. Each has its own area of application. The ladder is not a workplace as that has to be understood in the Workplace Regulations.
55. As for the "whirring" of the computer units in the server room constituting a relevant activity, I regard this as an utterly fanciful argument. If it is right, the playing of a transistor radio, a piece of equipment which not infrequently finds its place in a worker's toolbox, will also constitute some other electronic activity and so destroy the clear demarcation lines between these regulations. "Where the only activities being undertaken are building operations", those activities surely have to be human activities but, since the issue does not strictly arise, I need say no more about it.
56. I have nothing more to add to the judgments of my Lords. Accordingly I too would allow the appeal, dismiss the cross-appeal and enter judgment for East against Satelcom on the contribution claims.