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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Spencer-Franks v Kellogg Brown & Root Ltd & Ors [2007] ScotCS CSIH_23 (29 March 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_23.html Cite as: [2007] ScotCS CSIH_23, 2007 SC 469, [2007] CSIH 23 |
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord Justice ClerkLord JohnstonLord Marnoch |
[2007] CSIH 23XA33/06 OPINION OF THE LORD
JUSTICE CLERK In the Appeal by PETER SPENCER-FRANKS Pursuer and Appellant; against KELLOGG BROWN AND ROOT
LIMITED AND OTHERS Defenders and Respondents: _______ |
For appellant: Macdonald; Drummond Miller, WS
(for Lefevre Litigation,
For respondents: R Dunlop; HBM Sayers
[3] The pursuer
avers that he was engaged in repairing the door closer in the course of his
work as a mechanical technician and that he attempted to prise off the linkage
arm with a screwdriver. Counsel for the
pursuer submitted that the pursuer was at work at that time and that, since he
used the doorway while at work, the door closer was an apparatus or appliance
for use at work. It was therefore work
equipment (reg 2(1), sv "work
equipment" and "use"). Counsel put the
point in another way by suggesting that the door closer was a part of the
overall installation constituted by the oil platform itself and on that account
too was work equipment. He drew an
analogy between the door closer and the bunk ladder that was treated as being work
equipment in Robb v Salamis (M & I) Ltd (2005 SLT
523; revd, 2006 UKHL 56).
[4] In my
opinion, the term "work equipment" relates to items of the kind specified in
the definition in regulation 2(1) which the employee has for the purpose of
doing his work. The argument for the
pursuer is in substance the unsuccessful argument for the plaintiff in
[5] The bunk
ladder with which the court was concerned in Robb v
[6] In my opinion,
the true analogy in this case is with the wheel bolt on which the plaintiff was
working in
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord Justice ClerkLord JohnstonLord Marnoch |
[2007] CSIH 23XA33/06 OPINION OF LORD JOHNSTON in APPEAL By PETER SPENCER-FRANKS Pursuer and Appellant; against KELLOGG BROWN AND ROOT
LIMITED AND OTHERS Defenders and Respondents: _______ |
Act: Macdonald; Drummond Miller, W.S. (for Lefevre Litigation,
Alt: R Dunlop; HBM Sayers (Defenders and Respondents)
[10] This is an
appeal from the Sheriff at
[11] The relevant
averments of fact made by the pursuer are as follows.
"On that day one of the jobs which
the Pursuer had to carry out was inspect and repair
the door closer on the central control room door. This is a very busy door, with people going
in and out of the control room all the time.
This was because the door closer was not closing the door properly. The Pursuer wedged the door open enough to
allow people to pass through. He
inspected the door closer. The door
closer was not working. The Pursuer
decided that he would need to take the closer off of the door and take it to
the workshop where he could try to repair the closer. The Pursuer stood on a small portable stand
so that he could reach the door closer.
He wanted to assess the level of tension in the arm. In order to do this he tried to release the
tension by pushing the arm of the closer.
He required to back off the screw which held
the arm by about one half turn so that he could assess the tension. When this screw is screwed fully home, it
normally requires three or four complete turns in order to disengage it. The Pursuer was not intending to remove the
closer arm at that stage. He just
intended to look at it at that stage. As
he did so the screw holding the arm in place pulled out. The arm of the door closer struck the Pursuer
in the face".
"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 or health.
In
selecting the work equipment which he proposes to use, the employer shall pay
attention to the specific working conditions and characteristics and to the
hazards which exist in the undertaking and/or establishment, in particular at
the workplace, for the safety and health of the workers, and/or any additional
hazards posed by the use of work equipment in question.
2. Where it is not possible fully so to
ensure that work equipment can be used by workers without risk to their safety
or health, the employer shall take appropriate measures to minimise the risks."
I turn now to the relevant terms of the Regulations.
[13] Regulation
2(1) inter alia, provides:
"2(1) In these Regulations, unless the context otherwise requires
- ...
'use' in relation to work equipment
means any activity involving work equipment and includes, starting, stopping,
programming, setting, transporting, repairing, modifying, maintaining,
servicing and cleaning;
'work equipment' means any machinery,
appliance, apparatus, tool or installation for use at work (whether exclusively
or not)."
[14] Regulation 3 inter alia provides:
"(3) The
requirements imposed by these Regulations on an employer shall also apply - ...
(b) ...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".
[15] Regulation 4(2), (3) and (4) provides, inter alia:
"4(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 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) In this regulation 'suitable' -
(a) ... means suitable in any respect which
it is reasonably foreseeable will affect the health or safety of any person ..."
[16] Regulation 5
provides inter alia:
"(1) Every employer
shall ensure that work equipment is maintained in an efficient state, in
efficient working order and in good repair".
"Every employer shall take
appropriate measures to ensure that work equipment is so constructed or adapted
that, so far as is reasonably practicable, maintenance operations which involve
a risk to health or safety can be carried out while the work equipment is shut
down, or in other cases -
(a) maintenance
operations can be carried out without exposing the person carrying them out to
a risk to his health or safety; or
(b) appropriate
measures can be taken for the protection of any person carrying out maintenance
operations which involve a risk to his health or safety".
[20] The first is Robb v
[21] The House of
Lords subsequently allowed an appeal, currently reported at 2006 UKHL 56
dated
[23] Much more
importantly in the context of the present case, reference was made and much
consideration was given to the decision of the Court of Appeal in Hammond v Commissioner of Police of the Metropolis and Others (2004 ICR 1467).
[25] The appeal
succeeded and in that respect May L.J. stated as follows:
"24.
Although the definition of what
may be work equipment is to be found in regulation 2, the ambit of the
expression 'work equipment' in these Regulations is determined by
regulation 4. I am myself doubtful
whether taking regulation 2 alone, the wheel bolt was 'work equipment'
within the definition. However regulation 4(1),
it will be recalled, provides:
'The requirements imposed by these
Regulations on an employer shall apply in respect of work equipment provided
for use or used by any of his employees who is at work ....'.
This indicates, in my view, that the
Regulations are concerned with what may loosely be described as the tools of
the trade provided by an employer to an employee to enable the employee to
carry out this work. I emphasis that my
use of the expression 'tools of the trade' is intended to be illustrative and
not definitive. There plainly are many
things such as, for instance, a hoist, which may be work equipment, for which
the word 'tools' would be inapt. The
requirements of the regulation are imposed in relation to 'work equipment'
falling within the definition of regulation 2(1) which is provided by an
employer for use by his employees when they are at work. It does not apply to an object which the
employee is working on provided by others.
Thus, the car which is taken to a garage for repair is not work
equipment in the context of the garage and its employees. In the present case, the police van was not
the property of the first defendant, but of the second defendant. The van might well be work equipment of a
policeman driving it, but not of the police mechanic repairing it, at least
where the van is not the property of the employer of the mechanic. In Kelly
1999 SCLR 1025, it looks as if the track upon which the pursuer was working was
the property of the pursuer's employers.
I would reserve the question, which does not arise in the present case,
whether that is a valid distinction. If
it were not a valid distinction, I would respectfully disagree with the
decision which Lord Abernethy made in that case.
25. There
are, in my view, other clear indications that these Regulations do not extend
to that which the employee is working on as distinct from the equipment which
he is using to undertake his work. These
include the following.
(a) The
general sense of both Directive 89/655 and the 1992 Regulations is
that they are concerned with equipment which the employer provides to the
employee (or which the employee brings along himself) to carry out his work -
see especially article 3 of the Directive and regulation 4 of the
Regulations.
(b) Regulation
5(1) is not apt, in its reference to work equipment being suitable for the
purposes for which it is used, to refer to the car having its tyres changed or
the part-assembled work piece on an assembly line.
(c) The
reference to 'selecting work equipment' in article 3 of the Directive and
regulation 5(2) is not apt for the car brought in by a customer to have
its tyres changed, nor the part-assembled work piece on the assembly line. The employer does not select the car, just as
he does not within these Regulations provide it for use by his employees in
their work.
(d) Regulation 5(3) is equally inapt for the
wide construction advocated by [counsel for the claimant].
(e) Although
'use' is defined by regulation 2(1) to include 'any activity involving
work equipment', you do not 'use' something you are working on or
repairing. You do by contrast use the
equipment provided to enable you to do the work".
"30. There
is nothing either in the Directive or the Regulations which suggests it was
intended to impose the absolute obligation created, for instance, by
regulations 5 and 6 in relation to apparatus provided by third parties on which
employees are to work".
[29] Leave to
appeal to the House of Lords was refused.
The case has been commented upon subsequently, particularly in PRP Architects v Reid 2007 I.C.R. 78. It is of course not binding on this Court but
it is of high persuasive authority. It
also has to be noted that reference was made in passing to a Scottish case Kelly v First Engineering 1999 SCLR 1025, a decision of
Lord Abernethy in the Outer House of this Court concerning an injury to a
workman working on a stretch of railway track, in not dissimilar circumstances
to Hammond inasmuch that a nut
holding a fish plate apparently seized and caused an injury. It is clear to me that this case, as far as
this Court was concerned, was presented with an inadequate argument and I am
not persuaded that it bears sufficient weight to be considered by this
Court. In any event May L.J.
indicated that if it had been relevant to his decision he would not have
followed it, and I therefore put the case to one side.
[30] As regards the
first defender the relevant part of the Sheriff's decision is as follows:
"[29] It
seems to me that the observations of May L.J. and Brooke L.J. on
Regulation 4 of the 1992 Regulations are of equal application to the equivalent
provision in the 1998 Regulations namely Regulation 3(2). Although the wording is slightly different
from that used in Regulation 4 of the 1992 Regulations I consider that the two
Regulations have the same effect, namely that the employer has responsibility
for work equipment supplied by him to his employee for use by his employee at
work, but not for equipment on which the employee is working which was provided
or supplied by a third party.
The distinction drawn by May L.J.
between equipment supplied by an employer to an employee and equipment supplied
by and belonging to a third party is if anything an even more valid one under
the 1998 Regulations which make new and specific provision as to the duties of
non employers in respect of work equipment.
[30] It
is clear to me that the situation as between the pursuer and his employer, the
first defenders, in the present case is essentially that described by
Lord Justice May in Hammond,
namely that the pursuer was, in the course of his employment with the first
defenders and on their instructions, working on a piece of apparatus owned and
provided by a third party, namely the installation owner. In these circumstances, in the interpretation
of a UK Statute of general application, and in the absence of any Scottish
authority I feel bound to follow the judgement of the Court of Appeal in
[31] It is to be
noted that the learned Sheriff purported to follow
[32] As regards the
position of the second defenders the learned Sheriff says as follows:
"So far as the second defender is
concerned, I consider the position to be different. It is clear, reading the pleadings as a
whole, that one of the functions of the employees of the first defenders was to
carry out maintenance and repair work on, among other things, the door and its
associated equipment which was owned by the second defenders and formed part of
their installation. The door in question
was the door to the central control room which the pursuer avers was a very
busy door. The door and therefore the
closer would be constantly used by workers on the installation in the course of
carrying out their work. I have already
indicated that the closer falls within the definition of apparatus or an
appliance, and that it would be used, in the words of the Regulation, 'at work'
by the people aboard the installation as they entered and left the control
room. In general terms it was work
equipment as defined in Regulation 2.
Although Lord Justice May indicated that 'use' did not include repair,
that, I understand, was in the context of his consideration of the liability of
an employer in terms of Regulation 4 of 1992 for equipment not provided by the
employer, owned by another and being repaired by the employer's employee".
[34] Against this
decision the pursuer lodged the following grounds of appeal:
"1. The
sheriff erred in law when he decided to dismiss the action in so far as it was
directed against the first defenders.
Having correctly identified that the door closer was work equipment
within the meaning of the Provision and Use of Work Equipment Regulations 1998,
he erred in then holding that the provisions of those Regulations did not apply
to the first defenders at the time that the pursuer was working on the door
closer. Those Regulations apply to the
maintenance and repair of work equipment which is used at work. The pursuer, and everyone else on the rig,
used the work equipment each and every time that they went through the door to
which it was attached. Once it is
accepted to be work equipment, the pursuer is entitled to the protection of
those Regulations when he was trying to repair the door closer.
2. The
Sheriff erred in law in deciding to dismiss the action in so far as it was
directed against the first defenders by basing his decision upon something
which was not argued before him. It was argued for the first defenders that
the door closer was not work equipment when it was being worked upon by the
pursuer as it was not the property of his employers. It was not argued that the door closer was
work equipment but that at the time of the repair the said
Regulations did not apply to the
first defenders. Accordingly, the
pursuer's counsel when replying to the submission for the first defenders did
not address the basis upon which the Sheriff decided the issue.
3. The
Sheriff has erred in law in that he gives no reason why the said Regulations
did not apply to the first defenders in respect of work equipment when that
work equipment was being repaired.
4. The
Sheriff has erred in law in that he has failed to consider the effect of
Regulation 22 of the said Regulations, which deals with the maintenance of work
equipment. Once it is accepted, as it
was accepted by the sheriff, that the door closer was work equipment, then the provisions of Regulation 22 apply for the benefit
of the pursuer. If the door closer is
work equipment, then it has to be capable of being maintained without risk to
the health or safety of the person who is carrying out the maintenance
operation".
"The defenders and respondents
respectfully submit that, while the learned Sheriff correctly dismissed the
action against the First Defenders, he erred in refusing to dismiss the action
insofar as laid against the Second Defenders.
Having correctly found that the
Provision and Use of Work Equipment Regulations 1998 did not apply to the door
closer in the context of the claim against the First Defenders, the Sheriff
went on to find the position otherwise with regard to the Second
Defenders. In doing so he erred. The 1998 Regulations do not extend to items
upon which a person is working (as opposed to items used by that person to
undertake such work). There is no
warrant in the 1998 Regulations for holding that the ambit of the Regulations,
so far as their application to particular items is concerned, is different as
between an employer, on the one hand, and the owner of the equipment, on the
other.
Further and in any event, in giving
his reasons for holding that the 1998 Regulations did apply to the door closer
so far as the Second Defenders were concerned, the learned Sheriff erred in
holding, at [32], that the relevant matters were within the control of the
Second Defenders. In narrating the
statutory provisions of Regulation 3(3)(b) (at
[32]), the Sheriff omits the final words, which make clear that the obligations
imposed thereby only apply 'to the extent of' the control exercised by the
relevant defender. The accident was
caused by the repair operation undertaken by the pursuer. The only way in which the Second Defenders
are said to have had relevant control is that they owned the door-closer and
requested the repair thereof. Neither
averment amounts to relevant 'control' for the purposes of the 1998
Regulations.
The case brought under the 1998
Regulations is thus irrelevant quoad
both defenders. As the 1998 Regulations
are the only ground of liability averred on record, the action should thus be
dismissed in its entirety".
Against that background, counsel for the appellant submitted
that if any equipment involved and being used by the employee was embraced by
the Regulations and as such led directly to an injury to the relevant workman,
the Regulations were breached. He
reached this conclusion by reference to Regulations 2 and 3 and
accordingly rejected
[37] Mr Dunlop for
the defenders, representing both, submitted that in each context work equipment
did not include the door closer mechanism.
He maintained that the position taken up by the Court of Appeal in
[41] In seeking to
resolve this matter, which I do not find easy, by reference to the terms of the
Regulations, I have to say at once that I find the notion that a fixture in a
structural building can be regarded as "work equipment" even if it has a
purpose, in this case that the door closed automatically, a somewhat strange
result. However, I am not influenced by
that point more than to make the comment.
It is for the same reason I have some doubts about the question of
whether the ladder in
[42] To my mind the
approach of the Court of Appeal in
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord Justice ClerkLord JohnstonLord Marnoch |
[2007] CSIH 23XA33/06 OPINION OF LORD MARNOCH in APPEAL By PETER SPENCER-FRANKS Pursuer and Appellant; against KELLOGG BROWN AND ROOT
LIMITED AND OTHERS Defenders and Respondents: _______ |
Act: McDonald; Drummond Miller, W.S. (for Lefevre Litigation,
Alt: R Dunlop; HBM Sayers (Defenders and Respondents)
[51] In the first
place, I respectfully adopt the reasoning of May L.J. in Hammond v Commissioner
of Police of the Metropolis [2004] EWCA Civ 830; [2004] ICR 1467 in holding that "work
equipment" for purposes of what are now the 1998 Regulations is concerned with
what can loosely be described as "tools of the trade" rather than with
miscellaneous objects which come to be worked upon incidentally with the use of
such tools. Although there was some discussion
in that case about the possible importance of such objects having been
"provided" by a third party I do not, myself, see that consideration as
determinative and I do not think that the ownership of an object is in any
event determinative of who should be seen as "providing" it to the employee.
[54] But, even
assuming for present purposes that the door closer did constitute "work equipment", the question remains whether it
can be said that the appellant was at the time "using" it in that capacity for
purposes of Regulation 4. In this
connection, counsel for the appellant relied, not unnaturally, on the fact that
the definition of "use" in Regulation 2 expressly includes, inter alia, "repairing, modifying,
maintaining, servicing and cleaning".
Moreover, although, rather surprisingly, the case was not cited to us, I
take note that in English v North Lanarkshire Council 1999 SCLR 310 Lord Reed, in a fully reasoned opinion, held that Regulation 5(1) of the
1992 Regulations (of which Regulation 4(1) of the current Regulations is the
equivalent) covered "not only the suitability of a meat-slicing machine for the
purpose of slicing meat safely, but also as covering its suitability for being
cleaned safely".
